President Biden announced last month that he would nominate Todd Kim to be the top environmental lawyer at the Department of Justice.
It was a relatively quiet announcement, devoid of much fanfare, compared to the position’s enormous potential to shape environmental and climate policy for years to come. The Assistant Attorney General (AAG) of the Environment and Natural Resources Division (ENRD) leads a team of around 550 lawyers whose responsibility is to represent the government in enforcing laws relating to issues like air and water pollution, biodiversity, and tribal sovereignty.
ENRD lawyers, to be led by Kim if he is confirmed, will be responsible for defending laws intended to preserve the environment against the fierce lobbying efforts of profit-hungry corporations dead-set on burning fossil fuels and polluting the earth like there’s no tomorrow. They should be prepared for large numbers of unjustified legal challenges as polluting industries fight to stay relevant.
This decade’s ENRD will also play an important role in repealing dangerous Trump-era environmental rules. From deciding which rules to prioritize to crafting legal arguments designed to convince the (unfortunately conservative) slate of federal judges that science requires the Biden administration to chart a different path, ENRD lawyers must be dedicated and high-energy if they want to set strong, positive precedent in courts.
Todd Kim was met with generally solid reception from environmental law groups like Earthjustice. Considering Kim’s background, which is made up largely of public service including a long stretch as Washington DC’s first solicitor general, this may well be justified.
But there are reasons to be concerned about Kim’s loyalty to the public over industry actors. Kim spent the last three years working in the Appellate Practice at BigLaw firm Reed Smith, which counsels 13 of the world’s 15 largest commercial and savings banks, 25 of the world’s 35 largest oil and gas companies, and the world’s three largest pharmaceutical distribution and wholesale companies.
While at Reed Smith, Kim defended health industry profiteer BlueCross BlueShield against an appeal case alleging discrimination based on a patient’s HIV+ status. Reed Smith also secured affirmance of summary judgment on behalf of an oil company against a class action suit alleging employee misclassification and represented the Russian trolls indicted in the Mueller probe for interfering in U.S. elections.
It is quite possible that Kim had the least of the bad intentions possible while a partner at Reed Smith and will be an excellent AAG willing to use the full extent of his executive powers to protect the environment from climate change, deforestation, and pollution. We hope this to be true. But it is undoubtedly worrying that he appears to have worked on behalf of industry actors, including oil companies whose profit model depends on planetary destruction and health insurance companies designed to wring pennies from working people.
Kim is set to appear before the Senate Judiciary Committee Wednesday morning for his nomination hearing. We urge the committee members to issue a question for the record directly asking Kim about his post-government plans and whether he will commit to never again do work on behalf of polluting industry interests. If his intentions for the Assistant Attorney General role are good, and he is fully prepared for the enormity of the task ahead of him, he will have no problem answering the question affirmatively.