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The Impact of Justice Kennedy and the Effect of His Retirement

October 2018

Citation: ELR 10863

Author: Caitlin McCarthy, John C. Cruden, John Elwood, and Richard Lazarus

Justice Anthony Kennedy’s retirement in July has the potential to significantly affect the field of environmental law for years to come. The Supreme Court’s 2019 docket includes cases that cover a litany of environmental 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. These examples illustrate the changes that could lie ahead. On July 18, 2018, ELI held an expert panel exploring Justice Kennedy’s influence on environmental law, what his departure could mean for the future, and the nomination of Judge Brett Kavanaugh to the Court. This article presents 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 & Diamond 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. John Elwood is an Appellate Partner at Vinson & Elkins LLP and lecturer at the University of Virginia School of Law. Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard University Law School.

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