Bush's Attack on Enviro-Jurisprudence
Douglas T. Kendall and Philip E. Clapp
Appeared in the Bangor Daily News on February 21, 2003; The Providence Journal, February 27, 2003; and in the Daytona News-Journal on March 2, 2003.

What do you get when you cross a secretive presidential administration with the second most important environmental court in America? The nomination of Miguel Estrada to a lifetime seat on the U.S. Court of Appeals for the D.C. Circuit. Or, in other words, a stealth candidate who could roll back major environmental and public health safeguards.

Over the past two years, the Bush administration has gone to enormous lengths to insulate itself and its hostility to environmental protection from the public eye. Bush appointees have restricted Freedom of Information Act requests, given the Environmental Protection Agency (EPA) authority to stamp documents "secret," and repeatedly denied Senate requests for documents explaining the science and impacts of proposed rules to gut key sections of the Clean Air Act.

To understand how the president now carries this assault to the judiciary, it's important to remember that Estrada is being nominated to a court that hears most of the cases challenging environmental rulings and regulations issued by EPA, the Interior Department and other executive branch agencies. Such unique jurisdiction represents a major part of the court's work, and is surpassed in environmental importance only by that of the Supreme Court.

Already, the D.C. Circuit Court has proven a battleground. In recent times it has struck down or hindered: Clean Air Act protections against soot and smog, Clean Water Act protections for millions of acres of wetlands, designation of Superfund sites, guidelines on treatment of petroleum wastewater, and improved fuel efficiency standards.

Studies of the court since President Reagan began to make increasingly conservative appointments have shown that Republican judges voted to deny standing to environmental plaintiffs nearly 80 percent of the time. Law professor Richard Revesz, dean of the New York University School of Law, found that in one seven-year period, Republican-majority panels reversed EPA on procedural grounds raised by industry in 54 to 89 percent of such cases, a discrepancy from Democrat-majority panels that Revesz found "staggering."

And now an administration bent on obfuscating a shameful environmental record has introduced the perfect stealth candidate.

Estrada is a 42-year-old lawyer in private practice. He has no judicial experience and thus no rulings or decisions. He does not appear to have published a word since law school. He has never taught a class and he has made few public comments on his legal views. His legal experience has been largely confined to the criminal area; he apparently has no experience in environmental law and has relatively little experience in the civil and administrative law cases that comprise most of the docket for the D.C. Circuit.

Moreover, the Justice Department has refused to release any legal memoranda written by Estrada during his five years as a lawyer in the Solicitor General's office, even though similar documents have been produced during the confirmation proceedings for prior nominees. And the administration has instructed its judicial nominees "not to discuss court rulings, past or present, unless they have already expressed a view about a case in writing before being nominated."

Given this sparse record and the troubling comment by his former supervisor in the Solicitor General's office, Paul Bender, that Estrada is so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way," it's not surprising that members of the Senate Judiciary Committee repeatedly asked Estrada about his judicial philosophy. They were repeatedly rebuffed, even on the most mundane matters.

The difference party affiliation and ideology have made in D.C. Circuit decisions, coupled with the Bush administration's eagerness to unravel environmental protection, should worry anyone who cares about public health and the environment. The Supreme Court hears less than one percent of the numerous cases in which review is sought. If Estrada is confirmed without being required to make his views and record clear, more troubling decisions than ever before could slip through.

Kendall is executive director of Community Rights Counsel. Clapp is president of the National Environmental Trust. Special to the News-Journal.