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EXECUTIVE SUMMARY OF
HOSTILE ENVIRONMENT
Our nation's environmental protections
constitute one of this country's most significant accomplishments of the
second half of the twentieth century.
Through years of effort, visionary leaders and environmentalists
have successfully translated public support for protecting natural
resources — our air, water, and land — into effective and far-reaching
legislation. Enjoying
widespread popular support and bipartisan endorsement in Congress, these
statutes have been strengthened in both Republican and Democratic
administrations, and they have survived repeated, industry-funded rollback
attempts.
These protections now face a
grave challenge in an unlikely venue: our nation's federal courts.
A group of highly ideological and activist sitting judges are
already threatening the very core of environmental law.
New appointees to the bench could transform this threat into a
death sentence for many environmental protections.
In the last decade, these judges have imposed a gauntlet of new
hurdles in the path of environmental regulators, slammed the courthouse
doors in the face of citizens seeking to protect the environment, and
sketched the outline of a jurisprudence of “economic liberties” under
the Takings and Commerce Clauses of the Constitution that would frustrate
or repeal most federal environmental statutes.
These judges — most of
them appointed to the bench by Presidents Ronald Reagan and George H. W.
Bush — are engaging in anti-environmental judicial activism. They read into the Constitution powers of judicial oversight
that courts had never previously exercised.
They ignore statutory language and intent, substituting instead
their own policy preferences. Although
their opinions sometimes pay lip service to the benefits of environmental
protections, their activist ideology leads them to invalidate these
safeguards. They do this despite the widespread support our
environmental laws enjoy among our elected representatives and the
American people.
Here’s how questionable
legal theory translates into environmental harm:
·
Commerce Clause:
Preventing Congress from Protecting the Environment
Certain justices on the U.S.
Supreme Court, as well as several judges presiding in various lower
federal courts, have attacked the longstanding acceptance of the
Constitution’s Commerce Clause as the source of Congress’s authority
to enact safeguards to protect our air, water, and land.
Despite the clear connection between the subjects of environmental
regulation — such as commercial development or chemical manufacturing
plants — and interstate economic activity, some judges are beginning to
argue that these activities should fall within the exclusive control of
states. In one recent case, a
district judge in Alabama blocked the federal government’s efforts to
enforce toxic waste cleanup requirements because he decided the chemical
manufacturing site was a local real estate matter, not economic activity
subject to federal control.
·Takings
Clause: Paying Polluters Not
to Pollute
The Fifth Amendment’s
Takings Clause has provided another avenue of attack on fundamental
environmental protections. The
text and original understanding of this clause are quite narrow, requiring
the government to pay private property owners when it expropriates
or permanently occupies private land for public use.
Nothing in the text, history, or jurisprudence of the Takings
Clause suggests that the public should pay corporations for simply
complying with environmental protections and otherwise following the law.
In the last several years, however, some judges have used the
Takings Clause to strike down environmental protections unless the
government pays landowners compensation. Taxpayers must therefore pay polluters not to pollute.
·Eleventh
Amendment: Excusing
States from Compliance with Federal Environmental Laws
Judges also have twisted the
Constitution’s Eleventh Amendment to excuse states from complying with
federal environmental laws. The
Eleventh Amendment’s plain language prevents a federal court only from
hearing a suit brought against a state by a citizen of another state or
another country. Some judges
have departed from the Amendment’s narrow text to prevent citizens from
suing their own states for environmental violations.
In a recent case, an appeals court used the Eleventh Amendment to
reject a citizen suit against West Virginia mining companies that were
removing mountaintops and discarding their waste into nearby streams.
·The Standing Revolution: Keeping
Environmental Plaintiffs Out of Court
Finally,
some judges are promoting novel theories limiting the standing of
environmental citizen groups to go to court.
The U.S. Supreme Court, in a series of opinions written by Justice
Antonin Scalia, has distinguished between the object of regulation (i.e.,
a corporate polluter) and the beneficiary (i.e., a citizen trying to
stop pollution). Scalia has
used this distinction to exclude environmental plaintiffs from court even
when the applicable environmental
statute contains an explicit provision authorizing citizens to sue.
Under Scalia’s approach, timber companies, mining conglomerates,
chemical manufacturers, and the like get open access to the courts to
object to regulation that they perceive to be burdensome.
Citizen groups on the other hand are denied access to the court,
leaving widespread environmental harms without review.
In addition to these high
profile constitutional fights, environmental statutes are suffering a
death from a thousand cuts in non-constitutional cases as
anti-environmental judges ignore the intent of Congress expressed by
statutory text and legislative history. This trend is particularly
evident on the U.S. Court of Appeals for the D.C. Circuit, a critical
court empowered to hear most challenges to environmental decisions made by
federal agencies. In the last decade, the D.C. Circuit has struck down a long
list of environmental protections under statutes including the Clean Air
Act, Clean Water Act, and Endangered Species Act.
The rational seems to differ in every case. In one case, the court invoked an obscure doctrine of
statutory construction to justify ignoring the plain meaning of the word
"harm." In another,
the court imposed an unfair double standard that that benefits industry
petitioners, while imposing an often insurmountable hurdle in front of
environmentalists. Too
frequently, however, the result is the same: extensive empirical research
indicates that judges on the D.C. Circuit and around the country are
letting their ideology influence their decision making in environmental
cases.
Anti-environmental activists
have not only disregarded the plain meaning of our laws and decades of
binding precedent, in some cases they have manifested overt hostility to
the environment through extreme rhetoric.
Certain judges have belittled our government officials who are
charged with protecting the environment as "extortionists" and
"pointy heads." Another
judge refused to impose a proper sentence for environmental crimes under
federal sentencing guidelines because to do so, in his view, would be
"crazy." Another
referred to an endangered species as mere "bugs smashed upon [our]
windshields." One judge went so far as to declare Earth Day celebrations as
an unconstitutional establishment of the "Gaia" religion.
Their anti-environmental personal policy preferences could not be
more clear or more out of keeping with the views of the overwhelming
majority of the American people.
Such anti-environmental
activism in the courts was never supposed to happen.
Former Presidents Reagan and Bush promised the country judges who
interpret laws, rather than usurp Congress's power to make them.
In too many cases, however, the judges appointed by these
presidents have ignored this promise, proving instead to be openly
activist and hostile to environmental protections.
With numerous vacancies on the federal courts, the new Bush
administration will have a tremendous impact on the credibility of our
judicial system and the results it produces.
New judges must enforce the protections mandated by our landmark
environmental laws--like the Clean Water Act and the Clean Air Act.
The national cannot afford any new judges who take the bench inclined to
undermine longstanding precedents with personal activism.
To read the full version of the report in
PDF, click here.
To read the press release, click
here.
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