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Biden’s DOJ Environment Pick Has Extensive Litigation Record

March 16, 2021, 4:24 PM

President Joe Biden’s pick to lead the Justice Department’s environment division has broad experience in litigation over Superfund cleanups and water pollution, along with non-environmental issues.

Todd Kim has worked 20 years as a litigator, first for DOJ’s Environment and Natural Resources Division, then for the District of Columbia and in private practice. The White House on Monday announced plans to nominate Kim as assistant attorney general atop ENRD.

A review of Kim’s DOJ work shows an extensive background in many of the same issues that dominate environmental litigation today. His 11-year tenure as D.C.'s solicitor general adds layers of expertise in constitutional law and Supreme Court advocacy.

Senate confirmation to the role would bring Kim’s legal career full circle. He joined the division in 1998 through DOJ’s prestigious honor’s program for entry-level attorneys after graduating from Harvard Law School and clerking on the U.S. Court of Appeals for the District of Columbia Circuit.

Kim went on to serve seven years in the division’s appellate section, arguing high-profile cases involving Superfund sites, the Clean Water Act, and criminal enforcement of environmental laws.

“He’s somebody who will be able to dig in to complex cases and think strategically,” said former DOJ colleague Sean Donahue, now an environmental lawyer at Donahue, Goldberg, Weaver & Littleton.

DOJ Portfolio

Kim’s experience in Clean Water Act litigation might prove especially relevant in the coming years, as the Biden administration looks to revisit the scope of federal jurisdiction. In 2004, Kim successfully defended the Environmental Protection Agency and the Army Corps of Engineers in a Sixth Circuit dispute over whether the law applies to certain wetlands in Michigan.

The case was Carabell v. Army Corps, which ultimately became part of the Supreme Court’s famously fractured Clean Water Act jurisprudence. The court decided Carabell and the more widely known Rapanos v. U.S. together in 2006, issuing five different opinions that have driven ongoing litigation over the definition of “waters of the U.S.”

Under Biden, the EPA and Army Corps are expected to set out a new interpretation of the Clean Water Act’s scope, setting up one of the Justice Department’s major challenges in defending the new administration’s agenda. If confirmed, Kim will advise the agencies on their regulatory moves and oversee litigation strategy.

Kim’s work at ENRD touched on every other major environmental statute, as well. In 2003, he went up against prominent constitutional law scholar Laurence Tribe in the D.C. Circuit over whether General Electric Co. could pursue a claim that part of the federal Superfund law violates the Constitution’s Due Process Clause. The court ruled for GE the following year, dealing a loss to Kim and the government.

Kim argued another big Superfund case in 2001 in the Ninth Circuit, successfully fending off most arguments from Shell Oil Co. and other companies that the U.S. government should have covered more of the costs of cleaning up a hazardous waste site in California.

Similar disputes crop up often, with Superfund litigation representing more than a quarter of ENRD’s budget during some periods. The Supreme Court is weighing a dispute about the federal government’s liability in a Superfund case later this term.

Kim’s other notable work in the division includes a supporting role in a Ninth Circuit case involving the criminal prosecution of an employer who had workers clean out a cyanide-filled tank without protective gear. During his campaign, Biden vowed to direct the Justice Department to ramp up prosecutions of environmental crimes.

Broader Experience

Kim left ENRD in 2006 to become Washington, D.C.'s first solicitor general, managing appellate work for the district. His litigation experience broadened significantly in that role, with many high-profile cases and a couple trips to the Supreme Court.

Most prominently, Kim represented the District in D.C. v. Heller, the landmark gun rights case decided by the Supreme Court in 2008. Kim argued the case in the D.C. Circuit and worked on the briefs in the high court. He later argued D.C. v. Wesby, a case involving qualified immunity for police, at the Supreme Court. The District lost Heller and won Wesby.

Kim’s role as solicitor general occasionally took him back to environmental law. He represented D.C. in several multistate coalitions involving air quality regulations. In private practice at Reed Smith LLP since2018, Kim worked on appellate litigation involving a variety of issues, including arbitration agreements and discovery rules.

He joined the Biden administration in January as deputy general counsel for the Department of Energy. Earlier in Kim’s career, then-President Barack Obama twice nominated him for a seat on the D.C. Court of Appeals, but the Senate never acted on his nomination.

Senate Confirmation

Kim’s likely to see a smoother path to confirmation this time around, said Holland & Hart LLP Kelly Johnson, who worked with him at DOJ during the George W. Bush years.

But Senate Republicans have been aggressive in their vetting of other DOJ nominees—including Vanita Gupta, Biden’s pick to serve as associate attorney general—and Kim’s work defending D.C. gun restrictions in Heller could become a sticking point for some.

The Congressional Asian Pacific American Caucus praised Kim’s selection Monday, noting that he would be the first Asian American or Pacific Islander nominated for the role.

“I’m so grateful to President Biden for all he is doing to ensure qualified and compassionate leaders in our government, and for his ongoing commitment to building a federal workforce that reflects the full diversity of our nation,” Rep. Judy Chu (D-Calif.), chair of the caucus, said in a statement.

And his broad legal experience will serve him well as assistant attorney general, said Crowell & Moring LLP lawyer Tom Lorenzen, who also worked with Kim at the department. “Todd’s incredibly smart, dedicated to the environment and the division, very easy-going and likable,” he said.

Kim’s nomination comes as the Biden administration pushes to strengthen DOJ’s environmental justice work. The president in January directed the agency to consider adding environmental justice to ENRD’s name and creating a separate office focused on the issue.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editor responsible for this story: Seth Stern at sstern@bloomberglaw.com

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