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THE D.C. CIRCUIT, THE STEALTH CANDIDATE, AND THE BUSH ADMINISTRATION'S SECRECY ON ENVIRONMENTAL PROTECTION

Contact
: Doug Kendall, Community Rights Counsel 202 296-6889
Glenn Sugameli, Earthjustice 202 667-4500

Introduction

There is a reason that the Bush administration releases environmental rollbacks at 6:30 pm on Fridays before holiday weekends and why the administration has committed an unprecedented amount of taxpayer money to hiding environmental documents from public disclosure: the administration wants to do the bidding of corporate supporters and roll back environmental laws without the burden of public scrutiny.

The Bush administration is the most secretive administration ever to occupy the White House, and Miguel Estrada, nominated by President Bush to a lifetime seat on the U.S. Court of Appeals for the D.C. Circuit, is the perfect Bush nominee. Well known in conservative circles and viewed by a former supervisor as so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way" (Los Angeles Times, April 11, 2002), Mr. Estrada is otherwise a blank slate: the perfect stealth candidate.

The administration is determined to keep this slate blank. The Justice Department has refused to release any legal memoranda written by Mr. 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 numerous prior nominees. The administration has also 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." (Legal Times, 9/29/02). Because he has written nothing, Mr. Estrada refused to answer any question that might provide a window into his jurisprudential philosophy.

The administration's policy is one of "no fingerprints": the administration wants to place a judge on the D.C. Circuit who will roll back decades of environmental progress without bearing any political cost.

The Importance of the D.C. Circuit for Environmental Protections

The D.C. Circuit is empowered to hear most cases challenging environmental rulings and regulations issued by the Environmental Protection Agency (EPA), the Department of the Interior, and other executive branch agencies. This unique jurisdiction makes the court the second most powerful environmental court in the country, surpassed only by the Supreme Court.

The D.C. Circuit has become a hostile forum for environmental protections. Since 1990, the D.C. Circuit has struck down or hindered a long list of critical environmental protections including:

  • Clean Air Act protections for soot and smog. See American Trucking Ass'n v. EPA, 175 F. 3d 1027 (1999), rev'd, 121 S.Ct. 903 (2001);

  • Habitat protection under the Endangered Species Act. See Sweet Home v. Babbitt, 17 F.3d 1463 (D.C. Cir. 1994), rev'd, 515 U.S. 687 (1995);

  • Clean Water Act protections for millions of acres of wetlands. See National Mining Ass'n v. United States Army Corps of Eng'rs, 145 F.3d 1399 (1998);

  • Corporate average fuel economy (CAFE) standards. See Competitive Enter. Inst. (CEI) v. National Highway Traffic Safety Admin. (NHTSA), 956 F.2d 321 (1992);

  • Designation of sites on the Superfund National Priorities List. See Harbor Gateway Commercial Property Owners Ass'n v. EPA, 167 F.3d 602 (1999); Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C. Cir. 1993); and

  • Guidelines on treatment of petroleum wastewater. See American Petroleum Institute v. EPA, 216 F.3d 50 (2000); NRD.C. v. EPA, 25 F.3d 1063 (1994).

A recent empirical study conducted by Professors Christopher Schroeder and Robert Glicksman found that in the 1990s pro-industry claimants experienced a five-fold increase in their success in challenging EPA's scientific decision making. Over the same period environmental claimants saw their success rate decrease by 20 percent.

Other studies have documented the extent to which ideology drives judicial behavior in the D.C. Circuit.

  • Professor Richard Pierce found that "Republican judges voted to deny standing to environmental plaintiffs in 79.2 percent of the cases, while Democratic judges voted to deny standing to environmental plaintiffs in only 18.2 percent of cases." Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C.L. REV. 1741, 1760 (1999).

  • Professor Richard Revesz found that from 1987 to 1994, panels consisting of two Democrats and one Republican reversed the EPA on procedural grounds raised by industry in between 2 and 13 percent of cases. Over the same period, panels consisting of two Republicans and one Democrat reversed EPA in 54 to 89 percent of these cases. In Revesz's words, "the magnitude of these differences is staggering." Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L.REV. 1717, 1766 (1997).

The difference party affiliation and ideology have made in terms of results on the D.C. Circuit should be chilling to anyone who cares about public health and the environment, particularly because the Supreme Court reviews less than one percent of the numerous cases in which review is sought.

The Stealth Candidate

Miguel Estrada is a forty-one year old lawyer in private practice. He has no judicial experience and thus no rulings or decisions that would indicate, as Senator Dianne Feinstein (D-CA) noted, whether he "would follow the law or not." 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 civil/administrative law cases that comprise most of the docket of the D.C. Circuit.

Given this sparse record, the troubling comments of his former supervisor Paul Bender, and the importance of the D.C. Circuit, Senators on the Judiciary Committee repeatedly asked Mr. Estrada questions designed to reveal something about Mr. Estrada's judicial philosophy. They were repeatedly rebuffed, even on the most mundane matters.

For example, Mr. Estrada was asked to identify judges, living or dead, whom he would like to emulate on the bench in terms of judicial philosophy. He answered that: "There is no judge, living or dead, whom I would seek to emulate on the bench, whether in terms of judicial philosophy or otherwise." After Mr. Estrada described his judicial philosophy as one of a "fair constructionist," he was asked which Supreme Court justices he would characterize as "fair constructionist." He stated that he would characterize "each member of the current Court as a 'fair constructionist.'" When asked to identify Supreme Court cases decided in the past 40 years with which he disagreed, Mr. Estrada declined to answer, stating that it was not his "business" to criticize Supreme Court rulings.

Mr. Estrada's record, his refusal to answer routine questions, and the administration's refusal to provide Mr. Estrada's contested work product from his government service left Senators without any real basis to perform their constitutional advise and consent role. As The New York Times stated in a recent editorial: "Senators have a constitutional duty to weigh the qualifications of nominees for the federal judiciary. But they cannot perform this duty when the White House sends them candidates whose record is a black hole. Mr. Estrada's case is particularly troubling because the administration has more information about his views, in the form of his solicitor general memos, but is refusing to share it with the Senate." "An Unacceptable Nominee" (Jan. 29, 2003).

The Bush Administration's Secret Environmental Rollbacks

Mr. Estrada's stealth candidacy for a lifetime appointment to the D.C. Circuit is entirely consistent with the administration's overarching strategy of rolling back environmental protections with the minimum amount of public scrutiny and political cost. Over the past two years, the administration has gone to enormous lengths to insulate themselves and their hostility to environmental protection from the public eye. To give just a few examples:

  • In 2001, Attorney General John Ashcroft announced a new policy requiring agencies to deny Freedom of Information Act requests if there is any legal basis for doing so. Ashcroft promised that his Department of Justice would vigorously defend the agencies' FOIA denials in court. (The New York Times, 1/3/03)

  • For the first time ever, the Bush Administration has given the Environmental Protection Agency the authority to stamp documents "secret" to insulate them from public disclosure. (The New York Times, 1/3/03)

  • The Bush Administration repeatedly denied requests made by Senate Environment Committee Chairman James Jeffords (I-VT) for documents explaining the scientific basis and the potential impact proposed EPA rules would have on the Clean Air Act by gutting the New Source Review process. (The New York Times, 1/3/03)

  • The Bush Administration is seeking sweeping changes in the National Environmental Policy Act that would exempt federal agencies from studying the ecological impact of airport expansions, timber sales, and other major projects. (The San Francisco Chronicle, 9/27/02)

  • The Bush Administration has removed from a number of its web sites vast amounts of information used by citizens to inform them of such things as risks associated with nearby chemical factories and nuclear power plants, and where possible pipelines carrying oil, gas, and hazardous substances lay in relation to their homes. (The New York Times, 1/3/03)

  • The Bush Administration forced environmental groups and the General Accounting Office to go to court to obtain basic information about the functioning of the national energy task force, convened by Vice President Dick Cheney to reformulate a national energy policy that is more favorable to the energy industry. (The New York Times, 3/1/02)

  • The Bush Administration stonewalled Governmental Affairs Committee Chairman Joe Lieberman (D-CT) for months before producing requested information connected with the rollback of three environmental rules involving arsenic in drinking water, toxic pollution by mining companies, and roads in 60 million acres of federal forests. Ultimately, the White House agreed to give the documents to committee staff on the condition that they not be copied or made public. (Associated Press, 7/27/01)


 

 

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