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THE WILDERNESS SOCIETY
November 29, 2001
The Honorable Patrick J. Leahy
Chair, Senate Committee on the Judiciary
Re: Nomination of
J. Block to the
Court of Federal Claims
Dear Senator Leahy:
We respectfully urge you to consider our very
serious concerns about Lawrence J. Block’s pending nomination to the
United States Court of Federal Claims, which decides nearly all federal
“takings” claims. For
several years, Mr. Block has promoted extreme legislation to redefine
“takings” of private property in a manner that would threaten a wide
range of safety, health, environmental, civil rights and other
protections. His record and
his description of these bills in his nominee questionnaire indicate
that he would rule on constitutional takings claims in accord with the
compensation and ripeness standards proposed in these bills.
Mr. Block has even failed to acknowledge that the Supreme Court
has unanimously rejected the standards that he has espoused.
If confirmed to the court, Mr. Block could issue
rulings that force taxpayers to pay companies not to pollute or unfairly
profit at the expense of neighboring people, private property and the
environment. Such rulings
would undermine basic safeguards by mandating prohibitively expensive
payments to comply with the law.
Mr. Block's public responses to the Judiciary
Committee Questionnaire for Judicial Nominees state that: “From
January 4, 1995
, to the present, I have been
employed by the Judiciary Committee as Senior Counsel to Judiciary
Committee Chairman Orrin G. Hatch. I am responsible for various
legislative projects . . . . Specific
endeavors included property rights legislation codifying
compensation and ripeness standards . . . .” [emphasis added].
current description of the failed 104th Congress
“compensation” bills that he was “responsible for” echoes the
results of his contemporaneous staff work.
In introducing S. 1954, Sen. Hatch stated that: “[O]ur critics'
real problem is not with the overall bill, but with the U.S. Supreme
Court . . . All we did in our bill was to codify the ‘law of the
land.’ The bill codifies and clarifies recent Supreme Court standards
as to what constitutes a 'taking' of private property.” 142 Cong. Rec.
July 16, 1996
The Senate Judiciary Comm. Majority Report stated that the
"most important function" of the compensation portion of S.
605 “is to codify the substantive standards that apply to takings.”
S. Rep. No. 104-239, at 23. Finally,
a July 1996 “Dear Colleague” signed by Senator Hatch but bearing the
initials “LB,” states that S. 1954 simply “codifies and clarifies
recent Supreme Court standards as to what constitutes a ‘taking’ of
private property . . ..”
the Supreme Court’s constitutional rulings have unanimously rejected
the S. 605 and S. 1954 approach of requiring payments for laws that
reduce the value of any affected portion of property by a certain
percentage. As you and Senators Biden, Kennedy, Simon, Kohl, Feinstein,
and Feingold explained at the time, the standard set by S. 605
“quite radically departs from over a century of constitutional
thinking in this area, and poses a direct threat to the property, health
and safety interests of most Americans.”
Indeed, as you and the other Senators accurately pointed out, the
scope of S. 605 was “breath-taking” because it posed a threat to,
among other things: FDA bans on
requirements to make restaurant
restrooms wheelchair accessible; FCC limits on “dial-a-porn” to
protect children; EPA pollution control laws; and Interior Department
limits on coal mining. S. Rep. No. 104-239, at 54, 56-61 (minority
To achieve compliance with almost any federal law,
these takings “compensation” bills would have required windfall
payments from taxpayers to corporations and developers. As federal
agencies documented at the time, the result would have made it too
expensive to enforce a wide range of protections for children, workers,
neighboring property, communities, the environment, and national
unsuccessful 105th Congress legislation that Mr. Block refers
to as “codifying . . . ripeness standards” also attempted to
overturn Supreme Court holdings. H.R.
1534/ S. 2271 flatly contradicted the Court's rule requiring that those
with takings claims against local governments first seek compensation
through State courts before bringing a federal court takings claim. Williamson
County Regional Planning Commission v. Hamilton Bank, 473
172, 194 n.13 (1985).
The Court stated plainly that this State compensation requirement
is based on “the nature of the constitutional right,” leading many
members of the Senate Judiciary Committee to oppose the bill “because
it is very likely to be found unconstitutional.”
S. Rep. No. 105-242, at 31 (1998) (minority views).
nomination raises very serious issues.
Mr. Block's nominee
questionnaire responses indicate that he continues to believe that the
extreme bills that he was “responsible for” would have simply
codified constitutional standards, and would rule on constitutional
takings claims in accord with those standards.
In fact, those bills violated constitutional compensation
and ripeness standards
and threatened innumerable federal and local laws.
They were strongly opposed by Republican and Democratic
Senators, President Clinton, bipartisan groups of State Attorneys
General, legal scholars, and national organizations representing State
and local government, labor, civil rights, the environment, religious
denominations, taxpayers and many others.
held on Mr. Block’s nomination should be full, open and announced with
ample time for a detailed consideration of his views on takings law and
the effect his confirmation would have on critical federal protections.
The Judiciary Committee should invite academic and other
opponents of takings bills to testify.
A close scrutiny of Mr. Block’s understanding of, and record
and views on, takings is particularly needed because the Court of
Federal Claims has exclusive jurisdiction over most takings claims
against a very broad range of federal safeguards.
for consideration of our views. For
more information, please contact Glenn Sugameli, Senior Legislative
Counsel, Earthjustice, at 202-667-4500.
Earthjustice Legal Defense Fund
Defenders of Wildlife
Alliance for Justice
American Oceans Campaign
Director of Policy
American Planning Association
Ann C. Mills
Vice President For Conservation
National Policy Coordinator
Clean Water Action
Community Rights Counsel
Natural Resources Defense Council
Endangered Species Coalition
Environmental Working Group
Friends of the Earth
League of Conservation Voters
Vice President of Public Affairs
National Environmental Trust
Senior Director for Legislative Affairs
National Wildlife Federation
The Ocean Conservancy
K. Musil, PhD, MPH
CEO and Executive Director
Physicians for Social Responsibility
Vice President for Conservation Programs
Vice President of Public Policy
The Wilderness Society