PRESS STATEMENT OF
DOUG KENDALL
Three weeks ago, the United States Supreme Court ruled in
a case called Palazzolo v. Rhode Island. Palazzolo involved protections
for coastal salt marshes, among the world's most fragile and important
ecosystems. Coastal marshes are the spawning grounds for this country’s
commercial fishing industry. They protect upland property from erosion and
floods. They purify the drinking water consumed by millions of Americans.
Yet in the three separate opinions written by the five justices who
voted to undermine these protections, there is not a single sentence
recognizing the critical role these marshes play in protecting human
health and our natural environment. Instead, and remarkably, there is a
fight between Justices Scalia and Justice O'Connor about whether it is
appropriate to compare the government to "a thief" when it acts
to protect salt marshes. Justice Scalia uses this comparison, Justice
O'Connor rejects it.
This is not the first time Justice Scalia has described environmental
protections in pejorative terms. In another case, Justice Scalia labeled
an effort to maintain public access to the California coastline a
"plan of out and out extortion." In a third case, Justice Scalia
accused environmental groups of using citizen suits to line their personal
pockets.
Nor is Justice Scalia alone in expressing hostility towards
environmental protection. A federal judge recently referred to
environmental crimes statutes as "crazy" and ignored sentencing
guidelines even though the criminal conduct was both intentional and
egregious. Another judge prohibited an Earth Day celebration at a public
high school on the grounds that this celebration encouraged "the
worship of the earth," what the judge termed a "recognized
religion."
Environmental protections face an unfair playing field in our
nation’s federal courts. A handful of judges are willing to express
abject hostility to environmental protections. Many more judges, including
a slim majority on the justices on the U.S. Supreme Court, are willing to
ignore procedural and substantive obstacles in order to strike down
environmental protections.
The report we are releasing today: Hostile Environment: How Activist
Judges Threaten our Air, Water and Land, chronicles a disturbing story
that has been unfolding in the federal courts for the last decade.
Activist federal judges, most of them appointed by Presidents Reagan and
Bush, are striking at the very core of this nation’s environmental
protections.
In doing so, these judges are being activist in a manner that would
make Justice Brennan blush. Let me give you an example. The Takings Clause
requires compensation when the government “takes private property.” It
says nothing about government regulations. Nevertheless in recent years,
federal judges have found even the most innocuous environmental
regulations to be takings. One judge, for example, found a regulation of
fast motorboats in a wilderness area to constitute a taking. Interpreting
the Taking Clause to create a constitutional right to use fast motorboats
is not only activist, it’s ridiculous.
This is not an isolated example. As chronicled in our Hostile
Environment report, in the last decade judges have imposed a gauntlet of
new hurdles in the path of environmental regulators. They have slammed the
courthouse doors in the face of citizens seeking to protect the
environment. They have sketched the outline of a jurisprudence of
"economic liberties" that would frustrate or repeal most
environmental protections.
President Bush has promised to appoint judges that will interpret the
law, not make it up; judges that will not make social policy from the
bench. Such promises rule out the appointment of anti-environmental
judicial activists. Environmentalists are committed to holding the
President to his promises.
This is not about partisan politics. We are not asking President Bush
to appoint liberals or environmentalists. We are asking only that he honor
his own promises about the type of judges he favors. And we are doing so
for an important reason: the future of environmental law is at stake.
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