President Obama's newly confirmed solicitor, Elena Kagan, is receiving a warm welcome from environmental lawyers and scholars who are hailing the former Harvard Law School dean for her background in administrative law and for revitalizing the school's environmental law program.
After the Senate confirmed her, 61-31, last week, Kagan became the 45th solicitor general -- and the first woman ever to hold the position. She will argue for the government in Supreme Court cases.
"Dean Kagan has a lot of experience in administrative law, so she will be especially well-attuned to these regulatory issues that typically come before the high court in environmental cases," said John Nagle, an environmental law professor at the University of Notre Dame's law school.
Kagan, 48, served in the Clinton administration from 1995 to 1999, first as associate counsel in the White House Counsel's Office and then as deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council. A graduate of Princeton University and Harvard Law, she clerked for U.S. Appeals Court Judge Abner Mikva and later for Supreme Court Justice Thurgood Marshall, himself a former solicitor general.
She returned to Harvard Law as a visiting professor in 1999 and joined the school full-time in 2001. She has served as dean since 2003.
"She left a nationally visible mark on environmental law at Harvard," said Jim Rossi, a visiting environmental law professor at Harvard on loan from Florida State University. "For many years, Harvard was not known for a primary expertise in the environmental jurisprudence, and that changed under Dean Kagan's watch."
Rossi said Kagan was responsible for some smart hires and for bringing high-profile visitors in environmental law and boosting clinical offerings in that area.
In 2005, Kagan lured Jody Freeman away from UCLA School of Law to become the founding director of Harvard's Environmental Law Program. A national expert in environmental policy and regulation, Freeman recently accepted a post as counselor for energy and climate change in the Obama White House.
"While Elena will obviously have a very broad focus, she was an active promoter of the environmental law program at Harvard and was a big believer in the importance of looking at issues like climate change," said John Leshy, an environmental law scholar at the University of California Hastings College of the Law. "She will serve the administration well in this area."
Nicknamed the "10th justice," the solicitor general plays a role in about two-thirds of the Supreme Court's cases, and the justices often invite the counsel to provide an opinion on whether to take a pending appeal.
"A basic role of the solicitor general is to defend the laws duly enacted by Congress and the agencies, not just of the administration that appointed him or her," said Jay Austin, who heads the Environmental Law Institute's program monitoring Supreme Court environmental litigation.
"Still, the solicitor general's office can shape the flow of legal issues, by deciding when to petition for [review], or by arguing that the court should deny cert on cases that the administration might prefer not to defend," Austin said. "Like her predecessors, Dean Kagan will doubtless deploy these tools to bring environmental and other legal policies more closely in line with the current administration.'"
'Less hostile' to enforcement
The solicitor general also plays a central role in determining the positions the government will take in the courts at all levels of the judicial system.
"Under Kagan, we are likely to see the government take a less hostile approach to environmental enforcement," said Matt Kenna of the Western Environmental Law Center. "I think what we saw under the Bush administration is a Justice Department that would throw up any possible roadblock it could think of to environmental progress."
"In Summers v. Earth Island Institute, the solicitor general argued a very extreme position -- that while businesses should be allowed to challenge regulations, public interest groups should be limited -- even if a court finds a regulation unlawful," said Kenna, who argued the case on behalf of the Earth Island Institute. "Even though the Supreme Court ruled against us, 5-4, the majority did not go near that extreme position taken by the Bush administration."
The divided court ruled on that case this month, holding that environmental groups lacked standing to challenge a Forest Service regulation limiting public involvement in timber sales decisions.
It could take some time before Kagan has the opportunity to shape the Obama administration's legal policy on environmental issues, according to Notre Dame's Nagle.
"Most of the more controversial Bush-era decisions from the EPA, Interior or other agencies are simply going to be reversed or dealt with at the legislative level," Nagle said. "As the administration and different agencies begin to implement new policies, you'll start to see some of their decisions challenged in court."
Expanding regulatory enforcement of wetlands under the Clean Water Act and broadening the applicability of the Endangered Species Act to include the effects of climate change may be the first actions to face a legal challenge.
"But we would have to wait for the appeals process to run its course, which may take several years, before any such cases reach the Supreme Court," Nagle said.
Prospective high court nominee?
Nominated by Obama, her former colleague at the University of Chicago Law School, Kagan is widely regarded as a serious candidate for an opening on the Supreme Court.
"I've known Elena over the years, and I think she'd make a first-class appointment to the bench," said Leshy, a visiting professor at Harvard Law School in 2004, 2006 and 2007. "I can't imagine anyone being better suited."
While Kagan has won accolades from supporters, including environmental attorneys and legal scholars across the political spectrum during her time at Harvard, she would likely face a tough Supreme Court confirmation fight from Senate Republicans.
The Judiciary Committee's ranking Republican, Pennsylvania's Arlen Specter, expressed displeasure with Kagan's unwillingness to answer substantive questions about her views on specific issues during her recent confirmation hearing for the solicitor general's post. Others who voted against her pointed to her lack of experience in appellate advocacy. Kagan has never argued an appeal before any court, let alone the Supreme Court.
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