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June 10, 2003

The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510

The Honorable Patrick Leahy
Ranking Member, Senate Judiciary Committee
United States Senate
Washington, DC 20510

Dear Chairman Hatch and Ranking Member Leahy:

We are writing to express our very serious concerns with the nomination of Alabama Attorney General William H. Pryor to a lifetime position on the U.S. Court of Appeals for the Eleventh Circuit, which decides the fate of federal environmental and other safeguards in Alabama, Florida, and Georgia.

Mr. Pryor has been alone among the 50 state attorneys general in challenging the constitutionality of significant portions of the Clean Water Act and the Endangered Species Act. He has asserted that land use and wildlife protection are "traditional areas of state environmental primacy" in which the federal government generally cannot regulate. He has also testified to Congress that it is an assault on states' rights for the EPA to enforce the Clean Air Act to prevent expansion of dirty coal burning power plants, and he has fought vigorously to make states less accountable for failing to enforce federal minimum environmental standards. Finally, Mr. Pryor has demonstrated hostility to claims of environmental injustice, stating the unequivocal position that "environmental racism claims should fail generally."

Mr. Pryor's consistent advocacy of these positions, which are discussed in more detail below, is extremely troubling. If confirmed to the Eleventh Circuit, Mr. Pryor could bring to the bench an activism on these issues that would seriously undermine decades of established environmental law. Specifically, Mr. Pryor has:

  • Argued that Key Portions of the Clean Water Act and the Endangered Species Act Are Unconstitutional. Mr. Pryor has aggressively sought out opportunities to advance a remarkably narrow view of the federal government's power to protect the environment. For example, alone among state attorneys general, Mr. Pryor urged the Supreme Court to declare unconstitutional federal efforts to protect wildlife on private lands under the Endangered Species Act. Pryor unsuccessfully urged the Supreme Court to consider and reverse a Fourth Circuit ruling written by Chief Judge J. Harvie Wilkinson III that upheld federal authority to protect the red wolf and other species. Wilkinson rejected views later advanced by Pryor because they would "place in peril the entire federal regulatory scheme for wildlife and natural resource conservation" and "would require courts to move abruptly from preserving traditional state roles to dismantling historic federal ones." Gibbs v. Babbitt. Pryor also urged the Supreme Court to strike down federal efforts to protect waters and wetlands that provide habitat for migratory birds. Again, Pryor was the only state attorney general to file a brief arguing that the Constitution's Commerce Clause does not give Congress the authority to protect these nationally-important species. Eight states filed a brief supporting federal power. SWANCC v. United States.

  • Opposed Federal Efforts to Reduce Air Pollution; Supported an Environmental "Race to the Bottom." Environmental laws are textbook examples of cooperative federalism, with the federal governments and states joining together to achieve environmental progress. Mr. Pryor rejects this cooperative federalism in favor of what he calls "competitive federalism," where states can race to the environmental bottom, competing for businesses and tax revenue by offering ever laxer environmental protections. To advance this notion of "competitive federalism," Pryor has argued that states should not be accountable in court for failing to enforce minimum federal mandates. Pryor has also testified before Congress to oppose the Clinton Administration's efforts to close a loophole that allowed coal burning facilities to renovate their plants without upgrading pollution control technology. In testimony, Pryor accused the EPA of "invad[ing] the province of the states" by using "the blunt tool of enforcement" to carry out the pollution control requirements of the Clean Air Act.

  • Demonstrated Hostility Towards Environmental Justice. Mr. Pryor calls "his favorite victory of the 2000 Term" a Supreme Court ruling in Alexander v. Sandoval that denied individuals the ability to sue for enforcement of regulations under Title VI of the Civil Rights Act that form the primary source of rights to ensure environmental justice. His sweeping conclusion on this issue is remarkably insensitive to the victims of environmental injustice; his position is that: "Environmental racism cases should fail generally."

While many of President Bush's nominees to the federal bench have had troubling environmental records, none has waged as comprehensive an assault on national environmental safeguards as Mr. Pryor. We urge you to give Mr. Pryor's nomination the closest scrutiny.

Thank you for considering these important environmental concerns regarding Mr. Pryor's record and for taking seriously your Constitutional advise and consent responsibility.


Jeff Soule, FAICP
Director of Policy
American Planning Association

Paul Schwartz
National Campaigns Director
Clean Water Action

Dawn Hamilton
Executive Director
Coast Alliance

Doug Kendall
Executive Director
Community Rights Counsel

William Snape
Vice President and Chief Counsel
Defenders of Wildlife

Vawter Parker
Executive Director

Beth Lowell
Policy Director
Endangered Species Coalition

Sara Zdeb
Legislative Director
Friends of the Earth

David McIntosh
Staff Attorney
Natural Resources Defense Council

Sylvia Liu
Interim General Counsel

Brian Baenig
Legislative Director
Environment and Health Program
Physicians for Social Responsibility

Pat Gallagher
Sierra Club Environmental Law Program
Sierra Club

Ellen Athas
Director, Clean Oceans Program
The Ocean Conservancy



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