The Impact of Justice Kennedy and the Effect of His Retirement

• Date: 01 October 2018

10-2018 NEWS & ANALYSIS 48 ELR 10863

DIALOGUE

The Impact of Justice Kennedy

and the Effect of His Retirement

Summary

Justice Anthony Kennedy’s retirement in July has the

potential to signicantly aect the eld of environ-

mental law for years to come. e Supreme Court’s

2019 docket includes cases that cover a litany of envi-

ronmental issues, and his replacement will play a key

role. For the past three decades, Justice Kennedy was

a crucial swing vote on a variety of issues, including

the 5-4 decision in Massachusetts v. EPA and 4-1-4

decision in Rapanos v. United States. ese examples

illustrate the changes that could lie ahead. On July

18, 2018, ELI held an expert panel exploring Justice

Kennedy’s inuence on environmental law, what his

departure could mean for the future, and the nomina-

tion of Judge Brett Kavanaugh to the Court. Below,

we present a transcript of the discussion, which has

been edited for style, clarity, and space considerations.

Caitlin McCarthy (moderator) is Director of the Associates

Program at the Environmental Law Institute.

John C. Cruden is a Principal at Beveridge & Dia mond

PC, President of the American College of Environmental

Lawyers, and formerly Assistant Attorney General for the

U.S. Department of Justice’s Environment and Natural

Resources Division.1

John Elwood is an Appellate Partner at Vinson & Elk ins

LLP and lecturer at the University of Virginia School

of L aw.

Richard Lazarus is the Howard and Katherine Aibel

Professor of Law at Harvard University Law School.

1. Editor’s Note: Mr. Cruden here is speaking solely in his individual capacity,

and his views should not be attributed in any way to other entities.

Caitlin McCarthy: Justice Anthony Kennedy’s retire-

ment, and President Donald Trump’s nomination of Judge

Brett Kavanaugh to replace Justice Kennedy, is an issue at

the forefront of and aecting the future of environmental

law. I would like to introduce our outstanding panel.

John C. Cruden is a Principal of Beveridge & Diamond,

where he provides strategic counsel on high-stakes envi-

ronmental and natural resource s litigation, civil or crimi-

nal enforcement, and compliance. Previously, John served

as Assistant Attorney General for the Environment and

Natural Resources Division of the U.S. Department of

Justice (DOJ), where he had formerly been a Deputy Assis-

tant Attorney General and the Environmental En force-

ment Section Chief. In addition to years of leadership at

the D.C. Bar and the American Bar Association, John cur-

rently serves as President of the American College of Envi-

ronmental Lawyers. He was also formerly President of the

Environmental Law Institute.

John Elwood is a partner at Vinson & Elkins. He has

argued nine case s before the U.S. Supreme Court and ca ses

before most federal courts of appeals. He ha s particular

experience in environmental law, the False Claims Act,2

administrative law, government contracting, and federal

criminal law. Before going into private practice, John served

in senior-level positions in DOJ. As the Senior Deputy in

the Oce of Legal Counsel, he advised the White House

and federal agencies on a range of constitutional, st atutory,

and regulatory issues. John also previously clerked for Jus-

tice Kennedy.

Richard Lazarus is the Howard and K atherine Aibel

Professor of Law at Harvard University, where he teaches

environmental law, natural resources law, Supreme Court

advocacy, and torts. Richard has represented the United

States, state and local governments, and environmental

groups at the Supreme Court in 40 cases, and has pre-

sented oral arguments in 14 of those cases. His prima ry

areas of legal scholarship are environmental and natural

resources law, with particular emphasis on constitutional

law and the Supreme Court. He is the author of a variety of

outstand ing environmental law books and a rticles.

ank you all for being with u s today. For the past three

decades, Justice Kennedy has been a crucial swing vote on

a variety of environmental law issues, including Massachu-

setts v. Environmental Protection Agency3 and Rapanos v.

2. 31 U.S.C. §§3729 to 3733.

3. 549 U.S. 497, 37 ELR 20075 (2007).

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.