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For more than 30 years, environmental laws ranging from the
Clean Air Act to the Endangered Species Act have provided
a formidable weapon for activists and ordinary citizens trying
to protect the environment. While the environment does not
always prevail in court, litigation has become an essential
protection tool.
If the Bush administration has its way, that could all change,
some legal analysts say. When George W. Bush took office in
early 2001, there were more than 100 vacancies on the federal
bench-an unusually high number. Since then, he has nominated
scores of candidates to fill those judgeships. But critics
say that instead of choosing potential judges with strong
records of upholding the law, Bush's nominations are an orchestrated
attempt to spread his ideology.
It's not unusual for a president to nominate like-minded judges.
But with so many seats vacant, Bush-who has cited conservative
Supreme Court justices Antonin Scalia and Clarence Thomas
as his models of judicial excellence-has a unique opportunity
to stock the courts with political soulmates.
"The federal government's ability to enforce the law
and to protect people is at issue here," says Glenn Sugameli,
an environmental lawyer with Earthjustice. "There is
the ability to change how judges will be ruling on a whole
range of issues." And once confirmed, federal judges
stay on the bench for life.
A glance at federal court records suggests that the administration
has already begun using the courts to weaken environmental
protections. Department of Justice attorneys have consistently
failed to defend legal challenges to strong environmental
policies, such as the Clinton administration's "roadless
rule," which would protect over 58 million acres of road-free
national forest lands throughout the country. Add a well-placed
smattering of anti-environment judges to the federal courts,
and far greater damage could be done, Sugameli warns.
According to the Senate Judiciary Committee, after almost
three years of nominating and confirming, about 52 vacancies
remain, or about six percent of the 877-member federal judiciary.
About 50 nominations are waiting to be taken up by either
the committee or the full Senate, which must give confirmation.
Twenty-seven vacancies have been open for so long that they
are considered "judicial emergencies."
Bush may have the opportunity to choose a Supreme Court justice,
too: at least one, and possibly two of the high court's justices
could soon retire. With many controversial cases decided 5-4,
the replacement of even one justice-particularly the decidedly
left-leaning Justice Stevens, age 81-could have a big impact
on the court's rulings.
Earthjustice and a growing cadre of other green groups, including
the Community Rights Council (CRC), the Natural Resources
Defense Council (NRDC), Friends of the Earth and the Sierra
Club have joined in a multi-pronged fight to keep Bush's most
troublesome nominees off the federal judiciary.
Of the courts currently awaiting new judges, the little-known
Court of Federal Claims, whose wide-ranging influence is out
of proportion to its public profile, is a top concern among
greens. According to a joint report released by CRC, NRDC
and the Alliance for Justice called "Hostile Environment,"
the court already has a reputation for lending a sympathetic
ear to so-called "takings" claims filed by property
rights advocates. The court has decided in favor of plaintiffs
who have argued that the Fifth Amendment, which states that
property cannot be taken for public use without "just
compensation," requires governments to pay landowners
whose property diminishes in value because of environmental
regulations.
It's this court that will decide a case filed by Klamath Basin
farmers alleging that the federal government's decision to
cut off irrigation water to aid fish and other wildlife amounted
to a taking of their property that must be compensated.
Over the spring and summer, the Senate confirmed five of Bush's
six nominees to the federal claims court, and another was
recently nominated and has not yet received a hearing before
the Senate Judiciary Committee. One nominee, Victor Wolski,
is a significant threat, says Doug Kendall, executive director
of the Community Rights Counsel. "Wolski's nomination
is clear evidence that this administration is using appointments
to the Court of Federal Claims to advance its anti-environmental
political agenda," he says.
Wolski has said, "Every single job I've taken since college
has been ideologically oriented, trying to further my principles…limited
government, individual liberty and property rights."
The D.C. circuit court of appeals, which hears most suits
brought against the various federal environmental agencies,
is also vulnerable. In a high-profile 1999 case brought by
the American Trucking Association against the Environmental
Protection Agency (EPA) over new rules for smog and soot,
a panel led by Senior Judge Stephen Williams ruled that Congress
did not have the constitutional right to grant rule-making
authority to the agency in the first place. Then-EPA Administrator
Carol Browner called the ruling "bizarre" (E, November/December
1999), and it was unanimously overturned by the Supreme Court.
The newest addition to the D.C. circuit is John Roberts, who
was confirmed in May. As a former deputy solicitor under the
first President Bush, Roberts successfully argued on behalf
of the federal government in a 1990 Supreme Court case that
private citizens do not have the right to sue over environmental
violations unless they have been directly affected by the
violation.
The most recent Bush nominee to come under fire is Alabama
District Attorney William Pryor. In July, the Senate Judiciary
Committee approved Pryor's nomination to the 11th U.S. Circuit
Court of Appeals, which hears cases from Alabama, Florida
and Georgia. Environmentalists say his record indicates Pryor
would roll back federal environmental protections. In 2001,
Pryor asked the Supreme Court to review a decision that upheld
the federal government's right to bar the killing of red wolves
on private land under the Endangered Species Act and other
laws.
Testifying last year before Congress, Pryor took issue with
the federal government's "invasion" of state jurisdiction
over enforcement of the Clean Air Act. "EPA invaded the
province of the states and threw their respective air pollution
control programs into upheaval," Pryor said. His professional
fate now lies in the hands of the full Senate.
Conservatives say the controversy over Pryor and other Bush
nominees amounts to little more than political grandstanding
by Democrats. Jim Burling, an attorney with the conservative
Pacific Legal Foundation, rejects the idea that Bush is deliberately
picking anti-environmental judges. "There aren't any
fire-breathing right-wing zealots," he says. "I
kind of wish there were, but I don't see it."
Conservative legal scholar Richard Epstein, whose work helped
foster the "takings" movement, warns that few nominees
can withstand microscopic public scrutiny of their views.
"I think in the end, if you make [ideology] a serious
issue, then every nominee will be out of commission,"
he says.
Despite protests from environmental and other progressive
groups, many of Bush's nominees have made it to the bench.
But Senate Democrats have succeeded in tying up some of Bush's
most controversial nominees. Democrats successfully killed
the nomination of Miguel Estrada to the U.S. Court of Appeals,
and have held up the ascension of Priscilla Owen, nominated
to the 5th U.S. Circuit Court of Appeals.
With Republicans holding only a slim majority in the U.S.
Senate on the eve of a presidential election, the political
wrangling over Bush's judicial nominees-and the future of
the nation's environmental laws-isn't likely to end any time
soon.
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