August 14, 2022


Let'S Talk Law

Biden’s DOJ Setting Decide Has Comprehensive Litigation Document

President Joe Biden’s decide on to guide the Justice Department’s environment division has wide experience in litigation around Superfund cleanups and drinking water air pollution, along with non-environmental problems.

Todd Kim has labored 20 yrs as a litigator, to start with for DOJ’s Setting and Organic Means Division, then for the District of Columbia and in personal apply. The White Dwelling on Monday introduced designs to nominate Kim as assistant legal professional basic atop ENRD.

A evaluate of Kim’s DOJ perform shows an intensive qualifications in lots of of the very same challenges that dominate environmental litigation now. His 11-year tenure as D.C.’s solicitor normal adds layers of skills in constitutional law and Supreme Courtroom advocacy.

Senate affirmation to the position would carry Kim’s authorized occupation comprehensive circle. He joined the division in 1998 by means of DOJ’s prestigious honor’s program for entry-level attorneys following graduating from Harvard Law College and clerking on the U.S. Courtroom of Appeals for the District of Columbia Circuit.

Kim went on to provide 7 decades in the division’s appellate area, arguing superior-profile scenarios involving Superfund sites, the Cleanse H2o Act, and legal enforcement of environmental legislation.

“He’s anyone who will be capable to dig in to complex scenarios and consider strategically,” stated previous DOJ colleague Sean Donahue, now an environmental lawyer at Donahue, Goldberg, Weaver & Littleton.

DOJ Portfolio

Kim’s practical experience in Thoroughly clean Drinking water Act litigation may well establish especially appropriate in the coming many years, as the Biden administration appears to be to revisit the scope of federal jurisdiction. In 2004, Kim productively defended the Environmental Safety Company and the Military Corps of Engineers in a Sixth Circuit dispute more than regardless of whether the regulation applies to particular wetlands in Michigan.

The situation was Carabell v. Military Corps, which ultimately grew to become portion of the Supreme Court’s famously fractured Thoroughly clean Drinking water Act jurisprudence. The courtroom resolved Carabell and the more extensively recognized Rapanos v. U.S. collectively in 2006, issuing 5 diverse views that have driven ongoing litigation in excess of the definition of “waters of the U.S.”

Beneath Biden, the EPA and Military Corps are predicted to established out a new interpretation of the Cleanse H2o Act’s scope, setting up a person of the Justice Department’s major challenges in defending the new administration’s agenda. If verified, Kim will advise the businesses on their regulatory moves and oversee litigation approach.

Kim’s get the job done at ENRD touched on each other main environmental statute, as properly. In 2003, he went up from popular constitutional regulation scholar Laurence Tribe in the D.C. Circuit above no matter whether General Electric powered Co. could go after a declare that component of the federal Superfund regulation violates the Constitution’s Thanks Method Clause. The court ruled for GE the pursuing yr, working a reduction to Kim and the govt.

Kim argued a different major Superfund situation in 2001 in the Ninth Circuit, correctly fending off most arguments from Shell Oil Co. and other companies that the U.S. govt should have coated more of the charges of cleansing up a hazardous waste internet site in California.

Very similar disputes crop up usually, with Superfund litigation representing far more than a quarter of ENRD’s budget all through some intervals. The Supreme Courtroom is weighing a dispute about the federal government’s legal responsibility in a Superfund situation later on this expression.

Kim’s other noteworthy function in the division features a supporting job in a Ninth Circuit situation involving the prison prosecution of an employer who had staff cleanse out a cyanide-loaded tank devoid of protecting equipment. During his campaign, Biden vowed to direct the Justice Section to ramp up prosecutions of environmental crimes.

Broader Encounter

Kim left ENRD in 2006 to turn into Washington, D.C.’s very first solicitor typical, running appellate do the job for the district. His litigation encounter broadened noticeably in that role, with lots of high-profile scenarios and a couple visits to the Supreme Courtroom.

Most prominently, Kim represented the District in D.C. v. Heller, the landmark gun legal rights case made the decision by the Supreme Court in 2008. Kim argued the case in the D.C. Circuit and worked on the briefs in the higher court. He afterwards argued D.C. v. Wesby, a circumstance involving skilled immunity for police, at the Supreme Court. The District lost Heller and won Wesby.

Kim’s job as solicitor typical from time to time took him back to environmental law. He represented D.C. in various multistate coalitions involving air excellent polices. In non-public apply at Reed Smith LLP considering the fact that2018, Kim worked on appellate litigation involving a assortment of concerns, which includes arbitration agreements and discovery rules.

He joined the Biden administration in January as deputy basic counsel for the Section of Vitality. Before in Kim’s occupation, then-President Barack Obama two times nominated him for a seat on the D.C. Court of Appeals, but the Senate in no way acted on his nomination.

Senate Confirmation

Kim’s probably to see a smoother path to affirmation this time all-around, stated Holland & Hart LLP Kelly Johnson, who worked with him at DOJ in the course of the George W. Bush a long time.

But Senate Republicans have been aggressive in their vetting of other DOJ nominees—including Vanita Gupta, Biden’s select to serve as affiliate lawyer general—and Kim’s get the job done defending D.C. gun limits in Heller could turn out to be a sticking issue for some.

The Congressional Asian Pacific American Caucus praised Kim’s assortment 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 accomplishing to make certain skilled and compassionate leaders in our govt, and for his ongoing motivation to developing a federal workforce that reflects the entire range of our nation,” Rep. Judy Chu (D-Calif.), chair of the caucus, claimed in a statement.

And his wide authorized practical experience will serve him perfectly as assistant lawyer standard, reported Crowell & Moring LLP lawyer Tom Lorenzen, who also worked with Kim at the section. “Todd’s extremely sensible, committed to the natural environment and the division, incredibly simple-heading and likable,” he claimed.

Kim’s nomination comes as the Biden administration pushes to strengthen DOJ’s environmental justice function. The president in January directed the company to think about introducing environmental justice to ENRD’s identify and building a different business targeted on the issue.