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COMMUNITY RIGHTS COUNSEL · DEFENDERS
OF WILDLIFE · EARTHJUSTICE · ENDANGERED SPECIES
COALITION
ENVIRONMENTAL DEFENSE · ENVIRONMENTAL WORKING GROUP
· FRIENDS OF THE EARTH · NATIONAL ENVIRONMENTAL
TRUST · NATURAL RESOURCES DEFENSE COUNCIL ·
OCEANA
PHYSICIANS FOR SOCIAL RESPONSIBILITY · SCENIC AMERICA
SIERRA CLUB · SOUTHERN UTAH WILDERNESS ALLIANCE
U.S. PUBLIC INTEREST RESEARCH GROUP · THE WILDERNESS
SOCIETY
September 23, 2002
The Honorable Charles E. Schumer, Chair
Judiciary Subcommittee on
Administrative Oversight and the Courts
United States Senate
Washington, DC 20510
RE: Hearing on "The DC Circuit: The Importance of Balance
on the Nation's Second Highest Court."
Dear Senator Schumer:
On behalf of the more than one million members of the national
environmental organizations listed above, we are writing to
thank you for holding this important hearing on the importance
of balance on the U.S. Court of Appeals for the District of
Columbia Circuit.
In July 2001, many of us wrote to you and other members of
the Senate Judiciary Committee urging careful scrutiny of
the environmental record and views of nominees for lifetime
positions on the federal judiciary. The judges appointed to
the federal bench over the next few years will dramatically
affect the level of public health and welfare and environmental
protection in this country for several decades. We explained
that environmental protections long thought secure are now
in jeopardy in the federal courts. Certain federal judges
have been too willing to place their own personal policy preferences
above the intent of Congress as expressed in our landmark
environmental statutes like the Clean Water Act and the Clean
Air Act. A few more judges out of this mold will tip the balance
in courts across the country and roll the clock back further
on important national environmental protections.
These concerns are particularly important when it comes to
appointments to the DC Circuit. The DC 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.
Today, the DC Circuit is a deeply divided court. This divide
is illustrated by the razor-thin margin by which the court
declined to review a panel ruling in American Trucking Association
v. EPA, 175 F.3d 1027 (1999), that struck down Clean Air Act
protections against soot and smog promulgated by EPA to prevent
an estimated 15,000 premature deaths each year. As the panel
dissent pointed out, the Court's ruling ignored "the
last half-century of Supreme Court nondelegation jurisprudence."
Indeed, the panel was reversed in 2001 by a unanimous Supreme
Court.
The DC Circuit is also an increasingly unreceptive forum for
environmental plaintiffs. A recent empirical study conducted
by Professors Christopher Schroeder and Robert Glicksman found
that in the 1990's 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%. (For more on these
cases and these statistics see the enclosed chapter on the
DC Circuit from a report entitled Hostile Environment:
How Activist Federal Judges Threaten Our Air, Water, and Land).
With 4 vacancies on the twelve member DC Circuit, President
Bush has a historic opportunity to shape this critical court.
We have urged the President to honor his promise to nominate
judges who will respect the constitutionally mandated judicial
function of interpreting-rather than making-the law.
The Senate's constitutional advice and consent role is as
important as the President's in filling vacancies in the third
branch of government, the judiciary. We believe that, in carrying
out that role, the Senate must ensure that judicial nominees
are subject to the highest standard of scrutiny and, at a
minimum, should be required to demonstrate the qualities of
integrity, wisdom, fairness, compassion and judicial temperament.
Accordingly, we urge you to vote to confirm only those nominees
who:
1. Demonstrate a respect for the policy decisions made by
elected representatives to protect the public health and welfare
and our natural resources as reflected in our environmental
laws;
2. Demonstrate superior qualifications for the position;
3. Bring an objective, balanced approach to decision-making;
and
4. Demonstrate a commitment to protecting the rights of ordinary
people and do not improperly elevate the interests of the
powerful over those of individual citizens.
We also urge you to ensure that each nominee affirmatively
establish his or her qualifications for the critical and esteemed
position of federal judge. No President has a mandate to appoint
to the federal courts judges who are or may be hostile to
laws protecting the environment and the public's health and
welfare. The mere absence of disqualifying evidence in a nominee's
record should not constitute sufficient grounds for confirmation.
We strongly urge you to reject any nominee who would place
his or her own personal policy preferences above the explicit
Congressional mandates for protection embodied in our environmental
laws. Thank you again for holding this timely and important
hearing and for considering our views on the DC Circuit.
Sincerely,
Doug Kendall
Executive Director
Community Rights Counsel
William Snape
Vice President of Law and Litigation
Defenders of Wildlife
Martin Hayden
Legislative Director
Earthjustice
Beth Lowell
Policy Analyst
Endangered Species Coalition
John R. Bowman
Legislative Counsel
Environmental Defense
Richard Wiles
Senior Vice President
Environmental Working Group
Sara Zdeb
Legislative Director
Friends of the Earth
Kevin S. Curtis
Vice President, Government Affairs
National Environmental Trust
Alyssondra Campaigne
Legislative Director
Natural Resources Defense Council
Ted Morton
Federal Policy Director
Oceana
Karen Hopfl-Harris
Legislative Director/Staff Attorney
Environment and Health Program
Physicians for Social Responsibility
Meg Maguire
President
Scenic America
Pat Gallagher
Director, Sierra Club Environmental Law Program
Sierra Club
Larry Young
Executive Director
Southern Utah Wilderness Alliance
Anna Aurilio
Legislative Director
U.S. Public Interest Research Group
Leslie Jones
Staff Attorney
The Wilderness Society
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