Elena Kagan on Energy & Oil



No extensions for refineries' Renewable Fuel Program

On June 25, 2021, the Supreme Court decided HollyFrontier Cheyenne Refining v. Renewable Fuels Association, which concerned small refiners' eligibility for hardship exemptions under the federal renewable fuels standards ("RFS") program. Three small fuel refineries had each applied for a hardship exemption under the RFS program, and the EPA had granted each request. A group of renewable fuel producers then challenged those exemptions. By a vote of six to three, the Court held that the text of the statute does not require that the exemption be held continually in order to remain valid.

Justice Amy Coney Barrett dissented in an opinion joined by Justices Sonia Sotomayor and Elena Kagan. The dissenting justices argued that, while the majority attributed to Congress a meaning of "extension" that is "possible," it did not give the term its "ordinary meaning." In the view of the dissenters, the "ordinary meaning" of "extension" excludes a firm that has allowed its prior exemption to lapse.

Source: JD Supra on 2021 EPA & climate SCOTUS cases , Jul 14, 2021

Let citizens sue for harm caused by global warming

At yesterday's confirmation hearings, Kagan [addressed] the question of whether citizens should have the right to sue for damage to the environment. This has been the subject of some debate. There are those who argue that citizens don't have the constitutional standing to bring such cases because they can't prove they've been directly harmed by problems like global warming, the elimination of a species, or air or water pollution. Kagan affirmed that she believes citizens do have this right.
Source: Kate Sheppard in Mother Jones: "Kagan Talks Environment" , Jun 30, 2010

Clean Air Act displaced federal common law on CO2 emissions.

Justice Kagan joined the Court's decision on AMERICAN ELECTRIC v. CONNECTICUT on Jun 20, 2011:

Joined by the courts into one suit, eight states, New York City, and three nonprofit land trusts filed actions against five major electric power companies claiming their carbon dioxide discharges, by contributing to global warming, have interfered with public rights in violation of federal common law, or of state tort law.


Since four members of the Court hold that at least some of the plaintiffs have standing, though four others would find there is not standing, the Court will address the merits. Though a federal common law regarding air pollution has developed where once there was none, the passage by Congress of the Clean Air Act and the agreement of the EPA to regulate carbon dioxide emissions have occupied this field of law and have displaced the federal common law. The fact that the EPA has not yet issued rules does not allow the Court to issue decisions under the federal common law that are binding until the EPA does act, since Congress has shown its intent to have the EPA make these decisions. The process the Clean Air Act sets out is that the EPA, using its expertise, shall issue in the first instance regulations. Parties dissatisfied with those regulations may seek review of the EPA's actions in the US Court of Appeals. The possibility of state law claims for pollution will depend upon the preemptive effect of the Clean Air Act. As the preemption issue was not briefed for this Court, the state law claims are remanded for further consideration by the lower courts.

CONCURRED: ALITO concurs; joined by THOMAS

Assuming for the purpose of this decision that this Court in Massachusetts v. EPA interpreted the Clean Air Act correctly, this Court's analysis of the displacement of federal common law by Congressional enactment is also correct.

Sotomayor recused herself.
Source: Supreme Court case 11-AE-CT argued on Apr 19, 2011

Other Justices on Energy & Oil: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022