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AMERICAN PLANNING ASSOCIATION • CLEAN WATER ACTION
COAST ALLIANCE • COMMUNITY RIGHTS COUNSEL
DEFENDERS OF WILDLIFE • EARTHJUSTICE
ENDANGERED SPECIES COALITION • FRIENDS OF THE EARTH NATURAL
RESOURCES DEFENSE COUNCIL
THE OCEAN CONSERVANCY •OCEANA
PHYSICIANS FOR SOCIAL RESPONSIBILITY •SIERRA CLUB
U.S. PUBLIC INTEREST RESEARCH GROUP
THE WILDERNESS SOCIETY
ALABAMA ENVIRONMENTAL COUNCIL
ALLIANCE FOR AFFORDABLE ENERGY • BUCKEYE FOREST COUNCIL
CAPITOL AREA GREENS • CITIZENS COAL COUNCIL
COMMITTEE FOR THE PRESERVATION OF THE LAKE PURDY AREA
DOGWOOD ALLIANCE • FOUNDATION FOR GLOBAL SUSTAINABILITY
FRIENDS OF HURRICANE CREEK • FRIENDS OF RURAL ALABAMA
KENTUCKY RESOURCES COUNCIL, INC.
LANDWATCH MONTEREY COUNTY
SAND MOUNTAIN CONCERNED CITIZENS
SOUTHERN APPALACHIAN BIODIVERSITY PROJECT
TENNESSEE ENVIRONMENTAL ENFORCEMENT FUND
WATERKEEPERS NORTHERN CALIFORNIA
WISCONSIN FOREST CONSERVATION TASK FORCE
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July 9, 2003
The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510
The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
United States Senate
Washington, DC 20510
Re: Eleventh Circuit Lifetime Nomination of William
H. Pryor
Dear Chairman Hatch and Ranking Member Leahy:
We are writing to express our strong opposition to the
nomination of Alabama Attorney General William H. Pryor
to a lifetime position on the U.S. Court of Appeals for
the Eleventh Circuit, which decides the fate of federal
environmental and other safeguards in Alabama, Florida,
and Georgia.
As detailed below, and more fully in a report by Community
Rights Counsel (see www.communityrights.org/PDFs/PryorReport.pdf),
Alabama Attorney General Pryor has been exceptionally aggressive
in attacking the constitutionality of core national environmental
safeguards. At the same time, Mr. Pryor has failed to take
the enforcement action needed to bring Alabama's major corporate
polluters into compliance with environmental laws. Moreover,
in his oral and written responses to questions probing his
environmental record, Mr. Pryor has been remarkably unresponsive.
His evasive answers to questions about environmental issues
heighten our concerns about his suitability for such an
important court.
Mr. Pryor has been alone among the 50 state attorneys general
in challenging the constitutionality of significant portions
of the Clean Water Act and the Endangered Species Act. He
testified before Congress that "EPA invaded the province
of the States" by enforcing the Clean Air Act to prevent
uncontrolled pollution increases at dirty coal-burning power
plants and oil refineries (even though the pollution harms
downwind States). He has also demonstrated hostility to
claims of environmental injustice, stating unequivocally,
"environmental racism claims should fail generally."
Mr. Pryor's record indicates that, if confirmed to the circuit
court of appeals, he would bring to the bench an activism
on these issues that would seriously undermine decades of
established federal environmental safeguards for clean water,
clean air, endangered species, and environmental threats
to the health of minority communities. Specifically, Mr.
Pryor has:
-
Urged the Supreme Court to Strike Down
Key Portions of the Endangered Species Act As Unconstitutional.
Mr. Pryor has been extremely aggressive in seeking out
opportunities to advance an unjustifiably narrow view
of the federal government's power to protect the environment.
For example, alone among state attorneys general, Mr.
Pryor urged the Supreme Court to review the Fourth Circuit's
ruling in Gibbs v. Babbitt and declare unconstitutional
federal efforts to protect wildlife on private lands under
the Endangered Species Act. (The Supreme Court denied
Mr. Pryor's request). The author of Gibbs, Chief
Judge J. Harvie Wilkinson III, rejected the constitutional
arguments that Mr. Pryor later advanced because they would
"place in peril the entire federal regulatory scheme
for wildlife and natural resource conservation" and
"would require courts to move abruptly from preserving
traditional state roles to dismantling historic federal
ones." The other circuit courts that have considered
this issue all have similarly rejected constitutional
challenges to the ESA. Rancho Viejo v. Norton (D.C.
Cir. 2003); and GDF Realty v. Norton (5th Cir.
2003).
-
Urged the Supreme Court to Strike Down
Key Clean Water Act Safeguards as Unconstitutional.
Mr. Pryor also urged the Supreme Court in Solid Waste
Authority of Northern Cook County (SWANCC) v. United States
to strike down federal efforts to protect waters and wetlands
that provide habitat for migratory birds. Again, Mr. Pryor
was the only state attorney general to file a brief arguing
that the Constitution's Commerce Clause does not give
Congress the authority to protect this nationally important
habitat. In the same case, eight state attorneys general
filed a brief supporting federal power. The SWANCC
Court decided the case on statutory grounds, choosing
to avoid ruling on Mr. Pryor's constitutional argument.
-
Opposed Federal Efforts to Reduce Air
Pollution; Supported an Environmental "Race to the
Bottom." Environmental laws are textbook examples
of cooperative federalism, with the federal government
and states joining together to achieve environmental progress.
Mr. Pryor rejects this cooperative federalism in favor
of what he calls "competitive federalism." Under
this approach, states can race to the environmental bottom,
competing for industry and tax revenue by offering ever-laxer
environmental protections. To advance this notion of "competitive
federalism," Mr. Pryor has argued that states should
not be accountable in court for failing to enforce minimum
federal mandates. Mr. Pryor has also testified before
Congress in opposition to EPA's efforts to enforce the
law that requires the owners of coal-fired power plants
and oil refineries to adopt modern pollution controls
when they overhaul their facilities. In this testimony,
Mr. Pryor charged that "EPA invaded the province
of the States" by using "the blunt tool of enforcement"
to carry out the pollution control requirements of the
Clean Air Act. Joint Hearing Before the U.S. Senate
Committee on Environment and Public Works and the U.S.
Senate Committee on the Judiciary (July 16, 2002).
-
Failed to Compel Alabama's Corporate
Polluters to Comply With Environmental Laws. While
Mr. Pryor has adamantly opposed EPA's enforcement of federal
environmental laws on federalism grounds, during his tenure
Alabama has been remarkably lax in enforcing critical
environmental safeguards. According to a recently leaked
EPA report, the most recent data (FY 2001) show that 38
percent of all Alabama "major" dischargers of
water pollutants were in "significant noncompliance."
Alabama had 73 major dischargers in significant noncompliance
- making it one of the worst states in the nation on environmental
compliance issues. In five criteria that EPA uses to measure
enforcement efforts against these "SNC" facilities,
Alabama is tied with six other states by coming up short
in four of these five categories (only two states were
worse). A Pilot for Performance Analysis of Selected
Components of the National Enforcement and Compliance
Assurance Program (Feb. 2003).
-
Demonstrated Hostility Towards Environmental
Justice. In a published article, Mr. Pryor identifies
"[his] favorite victory of the 2000 Term" as
the Supreme Court ruling in Alexander v. Sandoval
denying individuals the ability to sue under Title VI
of the Civil Rights Act for enforcement of regulations
that form the primary source of rights to ensure environmental
justice. In a speech, Mr. Pryor's stark conclusion that
"environmental racism cases should fail generally"
demonstrates insensitivity to the victims of environmental
injustice.
Mr. Pryor's testimony at his Senate Judiciary Committee
hearing and his responses to written questions from committee
members did nothing to assuage these concerns. For example,
in his briefs in Gibbs and SWANCC, and in
several speeches, Mr. Pryor has argued that Congress does
not have authority to regulate in areas of "state environmental
primacy."1 Although
Mr. Pryor confirmed in response to a question by Senator
Edwards that he views "land use regulation and conservation
of wild animals" as areas of "state environmental
primacy," he did not answer Senator Edwards' next question:
"Do you believe that the federal government has the
power under the Commerce Clause to regulate in these areas?"
Instead, Mr. Pryor simply cited the 1942 case Wickard
v. Filburn for the proposition that Congress has authority
to regulate activities that are "economic in nature."
This begs the question, because Mr. Pryor would not state
whether or not he believes that land use and endangered
species conservation are economic in nature. Indeed in his
Gibbs brief, he argued that endangered species conservation
on private lands was not sufficiently economic to justify
regulation under the Commerce Clause.
Similarly, Senator Biden asked Mr. Pryor: "Do you
believe that Congress, through its Commerce Clause powers,
may criminalize the killing of endangered species"
that "never cross state lines?" Instead of answering
the question as to what he believed, Mr. Pryor cited the
fact that the Fourth Circuit in Gibbs v. Babbitt "has
held that Congress has the power to prohibit the killing
of an endangered species." The Gibbs ruling,
of course, is not controlling authority in the Eleventh
Circuit, where Mr. Pryor would sit. More importantly, Mr.
Pryor signed a brief that urged the Supreme Court to overturn
Gibbs and rule against federal authority to regulate
the killing of endangered species. Mr. Pryor plainly does
not believe that Gibbs settled Senator Biden's question,
which is of critical importance to conservationists across
the country.
Finally, Mr. Pryor stated that he does not have "a
judgment" on several critical issues that he has raised
in his own briefs. For example, the amicus brief Mr. Pryor
signed in the Gibbs case argued that Supreme Court
review of the case was necessary because otherwise "it
is inevitable that some other endangered species will find
its way onto private property and cause a criminal prosecution,
the derailing of a hospital project, or other injury to
State and local interest." When asked about this statement
by Senator Edwards, Mr. Pryor stated that he "[does]
not have a judgment" on whether federal environmental
protection efforts cause injury to state and local interests.
Respectfully, Mr. Pryor should not have signed an amicus
brief to the Supreme Court calling such injuries "inevitable"
if he had no "judgment" on the truth of the matter
asserted.
Grant Woods, former Attorney General of Arizona and a Republican
colleague of Mr. Pryor's, recently told National Public
Radio that he believes President Bush should "rethink"
his nomination of Mr. Pryor. Mr. Woods stated that Mr. Pryor
was "probably the most doctrinaire and the most partisan
of any attorney general I dealt with in eight years."
These statements exacerbate our concern, based on Mr. Pryor's
record and testimony, that, if confirmed, Mr. Pryor will
be unwilling or unable to decide fairly and impartially
the environmental cases that will come before his court.
For all these reasons, we strongly urge you to exercise
your constitutional advise-and-consent duty to oppose Mr.
Pryor's nomination to a lifetime seat on the Eleventh Circuit
Court of Appeals.
Sincerely,
Jeff Soule
Director of Policy
American Planning Association
Paul Schwartz
National Campaigns Director
Clean Water Action
Dawn Hamilton
Executive Director
Coast Alliance
Doug Kendall
Executive Director
Community Rights Counsel
William Snape
Vice President and Chief Counsel
Defenders of Wildlife
Vawter Parker
Executive Director
Earthjustice
Beth Lowell
Policy Director
Endangered Species Coalition
Sarah Zdeb
Legislative Director
Friends of the Earth
David McIntosh
Staff Attorney
Natural Resources Defense Council
Ellen Athas
Director
Clean Oceans Program
The Ocean Conservancy
Sylvia Liu
Interim Senior Director for Law and Policy
Oceana
Robert K. Musil, Ph.D., M.P.H.
Executive Director and CEO
Physicians for Social Responsibility
Pat Gallagher
Director
Sierra Club Environmental Law Program
Sierra Club
Anna Aurilio
Legislative Director
U.S. Public Interest Research Group
Leslie Jones
Staff Attorney
The Wilderness Society
Jayme Hill
Executive Director
Alabama Environmental Council
J. Michael Malec
Executive Director
Alliance for Affordable Energy
Susan Heitker
Executive Director
Buckeye Forest Council
Ray Ziarno
Treasurer
Capitol Area Greens
John L. Wathen
Chairman, Board of Directors
Citizens Coal Council
Denise LeCroy
President
Citizens for the Preservation of the Lake Purdy Area
Sarah Hodgdon
Executive Director
Dogwood Alliance
Thomas Fraser
President
Foundation for Global Sustainability
John L. Wathen
President
Friends of Hurricane Creek
Bryan Burgess
Executive Director
Friends of Rural Alabama
Tom FitzGerald
Director
Kentucky Resources Council, Inc.
Gary A. Patton
Executive Director
LandWatch Monterey County
Wayne Cummins
Executive Director
Sand Mountain Concerned Citizens
Marty Bergoffen
Campaign Coordinator
Southern Appalachian Biodiversity Project
John Noel
President
Tennessee Environmental Enforcement Fund
Leo P. O'Brien
Executive Director
WaterKeepers Northern California
Donald M. Waller
Chair
Wisconsin Forest Conservation Task Force
1 William H. Pryor, Competitive
Federalism in Environmental Enforcement, Speech to the Alabama
State Bar Environmental Section, June 8, 2001, at 17 (arguing
"in favor of limiting the reach of the federal government
through the Commerce Clause into traditional areas of state
environmental primacy").
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