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