Bush's Attack on Enviro-Jurisprudence
Douglas T. Kendall and Philip E. Clapp
Appeared in the Bangor Daily News on February 21, 2003;
The Providence Journal, February 27, 2003; and in the Daytona
News-Journal on March 2, 2003.
What do you get when you cross a secretive presidential
administration with the second most important environmental
court in America? The nomination of Miguel Estrada to a
lifetime seat on the U.S. Court of Appeals for the D.C.
Circuit. Or, in other words, a stealth candidate who could
roll back major environmental and public health safeguards.
Over the past two years, the Bush administration has gone
to enormous lengths to insulate itself and its hostility
to environmental protection from the public eye. Bush appointees
have restricted Freedom of Information Act requests, given
the Environmental Protection Agency (EPA) authority to stamp
documents "secret," and repeatedly denied Senate
requests for documents explaining the science and impacts
of proposed rules to gut key sections of the Clean Air Act.
To understand how the president now carries this assault
to the judiciary, it's important to remember that Estrada
is being nominated to a court that hears most of the cases
challenging environmental rulings and regulations issued
by EPA, the Interior Department and other executive branch
agencies. Such unique jurisdiction represents a major part
of the court's work, and is surpassed in environmental importance
only by that of the Supreme Court.
Already, the D.C. Circuit Court has proven a battleground.
In recent times it has struck down or hindered: Clean Air
Act protections against soot and smog, Clean Water Act protections
for millions of acres of wetlands, designation of Superfund
sites, guidelines on treatment of petroleum wastewater,
and improved fuel efficiency standards.
Studies of the court since President Reagan began to make
increasingly conservative appointments have shown that Republican
judges voted to deny standing to environmental plaintiffs
nearly 80 percent of the time. Law professor Richard Revesz,
dean of the New York University School of Law, found that
in one seven-year period, Republican-majority panels reversed
EPA on procedural grounds raised by industry in 54 to 89
percent of such cases, a discrepancy from Democrat-majority
panels that Revesz found "staggering."
And now an administration bent on obfuscating a shameful
environmental record has introduced the perfect stealth
Estrada is a 42-year-old lawyer in private practice. He
has no judicial experience and thus no rulings or decisions.
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 the civil and administrative law cases that comprise
most of the docket for the D.C. Circuit.
Moreover, the Justice Department has refused to release
any legal memoranda written by 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 prior nominees. And the administration has
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."
Given this sparse record and the troubling comment by his
former supervisor in the Solicitor General's office, Paul
Bender, that Estrada is so "ideologically driven that
he couldn't be trusted to state the law in a fair, neutral
way," it's not surprising that members of the Senate
Judiciary Committee repeatedly asked Estrada about his judicial
philosophy. They were repeatedly rebuffed, even on the most
The difference party affiliation and ideology have made
in D.C. Circuit decisions, coupled with the Bush administration's
eagerness to unravel environmental protection, should worry
anyone who cares about public health and the environment.
The Supreme Court hears less than one percent of the numerous
cases in which review is sought. If Estrada is confirmed
without being required to make his views and record clear,
more troubling decisions than ever before could slip through.
Kendall is executive director of Community Rights Counsel.
Clapp is president of the National Environmental Trust.
Special to the News-Journal.