What We Know About Kagan and the Environment

Basically, the answer is “nothing.”  Nada.  Zip.

I thought about leaving the body of this post blank in order to communicate that, but I figured that would simply look like I’d pushed the “publish” button by mistake.

Anyway, it’s not quite true that we know nothing at all. Actually, there are a few tiny straws in the wind:

  • She favors presidential authority over the executive branch, and in particular, judicial deference to agency positions that come from the White House.
  • Her father opposed the Westway highway project in New York City on behalf of a community group.
  • She brought Jody Freeman to Harvard, filling the school’s environmental law slot, which had been vacant for two decades.  (Not a priority hiring area for the school, obviously).

This doesn’t add up to very much.  But that may not be important.  In fact, if Kagan has no particular views about environmental regulation, that could be a good thing.

As I said in an earlier post discussing Justice Stevens’s environmental record, to protect the environment, we don’t need environmental crusaders on the Court. We just need judges who understand that the paramount role in environmental law is played by Congress (with an assist from administrative agencies), not by the courts.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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