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Prospective Supreme Court Vacancy Could Spell Environmental Disaster

Bush GreenWatch
June 30, 2005


Speculation is still rampant that Chief Justice William H. Rehnquist or another member of the Supreme Court will resign in the near future providing President Bush with his first opportunity to appoint a new justice to the Supreme Court.

Opponents of environmental safeguards are trying to use federal courts to attack the bedrock of environmental safeguards, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act, according to Doug Kendall, executive director of the Community Rights Counsel (CRC). Given the narrow margins in environmental cases before the Supreme Court, a single new appointment to the Court could have a tremendous impact on environmental protection, which is why groups on the far-right recently announced a $18 million campaign to confirm whomever President Bush names to the Supreme Court.

President Bush has called Antonin Scalia and Clarence Thomas his favorite justices. These justices have expressed views, often in dissent, that would dramatically undercut environmental protections. The confirmation of another justice sharing the judicial philosophy of Justices Scalia and Thomas could severely undercut environmental protections over the next several decades. The Supreme Court has played a critical role in shaping many regulations, and in the past five years alone it has ruled on:

  • the Environmental Protection Agency's authority to promulgate national ambient air quality standards (Whitman v. American Trucking Associations, 2001);
  • EPA's authority to prevent state agencies from issuing unreasonable Clean Air Act permits (Alaska Department of Environmental Conservation v. Environmental Protection Agency, 2004);
  • the extent of federal jurisdiction to protect water and wetlands (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], 2001);
  • the scope of parties' liability under the Superfund hazardous waste cleanup law (Cooper Industries v. Aviall Services, 2004);
  • the Department of Interior's obligation to protect wilderness and potential wilderness areas (Southern Utah Wilderness Alliance v. Norton, 2004);
  • environmental review of agency actions taken under international free-trade agreements (Department of Transportation v. Public Citizen, 2004);
  • the scope of pesticide manufacturers' common-law liability for damage resulting from use of their products (Bates v. Dow Agrosciences, 2005);
  • whether and when state and local agencies' land-use regulations run afoul of the Fifth Amendment "takings" clause and its "just compensation" requirement (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 2002); and
  • preemption of state and local governments' ability to regulate vehicle emissions (Engine Manufacturers Association v. South Coast Air Quality Management District, 2004). [1]

    Between 2003 and 2004, ten percent of the cases heard by the Court concerned environmental law.

According to Kendall, the very future of environmental law rides on decisions over the next few year regarding the composition of the Supreme Court: "The Supreme Court is the final arbiter of almost every important environmental question. If environmentalists aren't careful, we could wake up one morning to find our fundamental environmental safeguards wiped out by a stroke of the Supreme Court's pen."

It remains unknown whom President Bush will nominate, but many of the names mentioned for consideration bode poorly for the environments.

One name sometimes mentioned has been Janice Rogers Brown, who views the federal government as a "leviathan, crushing everything in its path." [2] With her extreme views on issues such as regulatory takings and her favor of "Lochner-era" attacks on government regulations, Brown's appointment to a lifetime seat on the Supreme Court could spell disaster for environmental safeguards.


[1] Earthjustice fact sheet.
[2] National Senior Citizens Law Center report.


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