For four decades, the federal courts have
stood up for environmental laws.
If George W. Bush has his way, that will soon be ancient history.
BILLINGS, Montana - The federal court here operates in a
pale stone building, five stories tall, whose bulk and plainness
make it appear a monument to impartial justice.
Inside, the neutral style continues in U.S. Magistrate Richard
Anderson's courtroom: beige walls with no windows, dark wood
furniture. The judge wears the ceremonial black robe. The
courtroom feels like a sanctuary, as if any judge's ruling
here is pristine, shielded from all the pressures of the outside
On this December day, the courtroom hums with an important
environmental case over a slew of coalbed methane wells planned
for the Powder River Basin, an arid rangeland that stretches
from Montana deep into Wyoming.
Four environmental groups, the federal Bureau of Land Management,
oil and gas companies, ranchers, and the state of Wyoming
are represented by 14 lawyers. The environmentalists are concerned
about salty wastewater from the wells, a grid of new roads
and pipelines, and the impacts on already-hammered species,
such as prairie dogs and sage grouse.
But before they address those concerns, the lawyers argue
over where the case should be argued. The environmentalists
have chosen to file the lawsuit here in Billings, while the
federal defendants, as well as Wyoming's state government
and the industry, want to move it to the federal court in
Earthjustice lawyer Susan Daggett attempts to explain why
the environmentalists didn't file in Wyoming, the state where
most of the drilling will come down. "Most of the plaintiffs
live here," she says. "Even those who live in Wyoming,
live closer to Billings than to Cheyenne." She adds a
compliment: "This court has the experience in these matters."
The BLM's attorney, Lori Caramanian, argues to move the entire
case - or at least the Wyoming portion of it. The judge challenges
her: "Is there any difference (in how the BLM runs) coalbed
methane in Montana and Wyoming'" And when she says yes,
he pushes skeptically, "The same resource, with the same
impact, from the same industry?"
The lawyers talk politely in terms of which court would be
most convenient and appropriate. No one brings up what they're
really arguing over, because it's too explosive: If the lawsuit
stays here, the inevitable appeals will rise to the 9th Circuit
Court of Appeals in San Francisco, where the judges have a
reputation for being liberal and sympathetic to environmentalists.
If the lawsuit is moved to Wyoming, any appeals go to the
10th Circuit Court of Appeals in Denver, where the judges
are considered more conservative.
The attorneys on both sides are "venue shopping,"
or "jurisdiction shopping," in legal parlance -
looking for a court, or even a specific judge, whose leanings
may improve their odds of winning. It's common practice by
both environmentalists and industry. Around the West, lawyers
know which of the federal judges are likely to be sympathetic,
and which are not.
And that information is becoming more valuable, because,
despite all efforts to make them look neutral, federal courts
are becoming increasingly political. Since the 1960s, the
courts have been the backstop for environmentalists. When
corporations or agencies have flouted federal laws protecting
wilderness areas or rivers or forests or endangered species,
environmentalists have gone to the courts, asking judges to
be the laws' enforcers. But that backstop has been eroding
over the past 20 years, and now, the Bush administration is
on an uncompromising quest to recast the judicial system by
appointing judges who are unlikely to agree with environmentalists,
to put it mildly.
As the Bush administration stacks the courts, it becomes
harder for environmentalists, like the ones in this courtroom
today, to find sympathetic judges. While the trend has received
little attention, it is emerging as the nation's core environmental
issue. The future of the movement - and of the West's land,
air, water and wildlife - depends very much on who gets to
wear the robe.
A process fraught with politics
Currently, there are only about 870 federal judges nationwide
on active status, holding coveted lifetime jobs, when all
vacancies are filled. They work the front lines in local district
courts, and work in 13 regional appeals courts and the Supreme
Court. Several hundred more judges are on "senior status,"
working reduced hours, or performing special duties.
Most federal judges are named in an utterly political process,
which is embedded in the United States Constitution. Most
of the power is held by the nation's president. To fill a
vacancy, the president identifies a pool of candidates, and
there are almost no job requirements. These days, all judges
begin as lawyers, but the president could nominate a hardware
store clerk, and there would be no law against it.
In what's supposed to be a system of checks and balances,
the president presents nominations to the Senate, and the
Senate votes yes or no. While the Senate can prevent the president
from appointing biased or unqualified judges, it almost always
votes yes, even when the other political party is in charge.
Most nominees have adequate credentials, and the parties don't
want the government machine to break down over something the
general public pays little attention to.
The exercise of political power goes back to President George
Washington, who made sure to appoint judges who would uphold
the fledgling U.S. Constitution. President Abraham Lincoln
appointed judges who didn't allow states to secede from the
Union. Franklin Delano Roosevelt appointed judges who supported
his radical New Deal programs in the 1930s. John F. Kennedy
and Lyndon Johnson saw judges in the South ruling against
the civil rights movement in the 1960s, and appointed new
judges who weren't racists.
The composition of the courts today has its roots in the
1960s and '70s, when a series of liberal Supreme Court rulings
outlawed prayer in public schools and established the rights
of the accused, such as the right to an attorney, and the
right to privacy, including the right to abortion. The era
also saw landmark environmental rulings - based on the flurry
of new laws that protected clean air and water, endangered
species, and public lands. In one famous case, the Supreme
Court upheld the Endangered Species Act and temporarily stopped
a huge hydropower dam in Tennessee to protect an obscure fish,
the snail darter. Courts also established the "hard-look"
doctrine, which holds that any federal action that may harm
the environment must be scrutinized.
The right wing of the Republican Party reacted strongly against
these rulings, and Ronald Reagan swept into the presidency
in 1980, running against so-called "activist judges."
During Reagan's two terms, he appointed 358 judges to lifetime
jobs ' more than any other president up to then, according
to the Federal Judicial Center, an agency of the court system.
We're still feeling Reagan's push for judges who want less
government and fewer laws and regulations, because more than
a hundred Reagan judges are still handling cases.
Even more, we're feeling the impact of Reagan's successor,
George H.W. Bush, who continued the ideological push in the
187 lifetime judges he named - almost all still handling cases
When Democrat Bill Clinton took over the White House, he
appointed 367 lifetime judges in his eight years in power.
But Clinton was a moderate, who had to deal with an extremely
hostile Senate run by right-wing Republicans for six of those
years. Weakened by sex scandals, the Whitewater investigation,
and his own impeachment trial in the Senate in 1999, Clinton
appointed many qualified judges, but had no political capital
to spend on confrontations over ideology - and he wasn't an
Much of the power during the Clinton years was held by Republican
Sen. Orrin Hatch of Utah, chair of the Judiciary Committee
when his party ran the Senate. Hatch led efforts to stonewall
dozens of Clinton nominees, and allowed any Republican senator
to kill any nomination with a single "no" vote.
Hatch also promoted his own candidates for judgeships, epitomized
by one politically connected friend, Ted Stewart, who had
no courtroom experience, and was fiercely opposed by environmental
Stewart, who ran Utah's Department of Natural Resources during
the 1990s, presided over the layoffs of dozens of state biologists
- an apparent purge to discourage anyone from speaking for
frogs and other species in trouble (HCN, 5/27/96: Utah ushers
its frogs toward oblivion). In 1999, Clinton refused to nominate
Stewart for a district judgeship in Utah, but Hatch held 42
Clinton nominees hostage until the president caved in.
At least two Clinton appointees to Western courts often rule
in favor of environmentalists these days. But all in all,
the Clinton years were "a lost opportunity," says
Judge Stephen Reinhardt, one of the few judges appointed by
President Jimmy Carter who is still hearing cases. "Clinton
was not willing to have any fights over (the courts),"
says Reinhardt, who sits on the 9th Circuit Court of Appeals,
"so he just bowed to the Republicans, and he was careful
not to nominate anyone who might be considered liberal."
As a result, the courts lean to the right. "There has
been a substantial return to 'originalism' in the courts in
the last 15 years," says Stephen Calabresi, a law professor
who co-founded the Federalist Society, one of numerous court
advocacy groups that have sprung up in Washington, D.C., since
1979. The Federalists claim to be fundamentalists, believing
that judges should stick absolutely to the original wording
of the Constitution, even if it means overruling more recent
case law. "I think (the trend in the courts) is good;
it reflects treating the Constitution as law and being bound
by it," says Calabresi.
Talking to a judicial right-winger, you get the feeling that
if the Founding Fathers didn't mention endangered species
in the Constitution, then the federal government has no authority
over snail darters, spotted owls and other species in danger
of extinction. Environmental lawyers see it differently.
"The mantra that the right wing is promoting a return
to first principles is just a smokescreen, designed to mislead
what they believe is an uneducated public," says John
Echeverria, director of the Environmental Law and Policy Institute
at Georgetown University.
"There has emerged since 1980 a new phenomenon - anti-environmental
judicial activism," says Doug Kendall, founder of Community
Rights Counsel, a Washington, D.C.-based group that helps
local governments defend their regulations against right-wing
lawsuits. "It's a product of a very distinct effort by
a series of Republican presidents to appoint judges who show
a hostility to environmental safeguards."
Bush II in charge
Despite the right-wing campaign, environmentalists have continued
to have noticeable success in the courts. That could change,
however, if George W. Bush has his way.
Bush probably understands the importance of judges better
than any president ever has - after all, he was named president
by judges in both Florida and Washington, D.C. He has surpassed
both his father and Reagan with his tactics on judges, pushing
some nominees who are blatant ideologues, reducing the role
of the American Bar Association in rating candidates - even
reducing the role of Senate Republicans in screening candidates,
all part of his pattern of concentrating power in the White
It keeps the Republican Party's dedicated right-wing voters
- and its industry campaign donors - energized. "Our
current president pushes the envelope. He's a risk-taker,
a high-stakes gambler," says Sheldon Goldman, a judicial
politics professor at the University of Massachusetts. "He
and his administration are willing to go to the mat on judges,
and for them it's a no-lose proposition. If they get their
ideological folks confirmed, then they turn to their (political)
base and say, 'Look, we delivered.' And if they can't, they
can say, 'We tried. And now you gotta work harder to get (more
Republicans elected to the Senate).' "
Of course, not all Bush nominees are ideologues, but some
of them are so in-your-face, they set a definite tone. Like
Victor Wolski: When Wolski was with the libertarian Pacific
Legal Foundation, from 1992 to 1997, he roamed the West filing
lawsuits against land-use planning and other environmental
measures. In 1999, he told the National Journal, "Every
single job I've taken since college has been ideologically
orientated, trying to further my principles ... limited government,
individual liberty, and property rights."
Last year, Bush appointed Wolski to the United States Court
of Federal Claims in D.C., a key property-rights venue. The
court handles "takings" cases, in which plaintiffs
claim damages for government regulations that reduce the value
of their property. It's comparable to a hard-hitting Earthjustice
lawyer being appointed to a court that specializes in environmental
Other questionable Bush appointees include Lawrence Block,
a former Hatch aide who was also a "takings" champion
(HCN, 2/18/02: Greens join 'Let's derail a judge's game'),
confirmed to the Court of Federal Claims; Timothy Tymkovich,
a protege of Interior Secretary Gale Norton, sworn in on the
10th Circuit Court of Appeals; and Sam Cassell, a University
of Utah law professor, sworn in as a district judge in Utah,
despite the revelation that he'd been paid $12,830 as a consultant
to nuclear-waste giant Envirocare, in the company's successful
campaign to defeat Utah's Radioactive Waste Control initiative
(HCN, 10/14/02: Utahns kill a radioactive dump).
Most of George W. Bush's judges haven't been on the bench
long enough to have a track record yet. But the one with the
longest record in the West, Sam Haddon - who was appointed
in 2001 to the district court in Great Falls, Mont. - has
already made two rulings severely limiting the scope of major
"We're steering our cases away from Judge Haddon,"
says one environmental lawyer in Montana, who asked not to
be named. Environmentalists have allied with groups fighting
for civil rights and abortion rights to encourage Democratic
senators to at least temporarily block a handful of Bush nominees.
Though their party is now the minority in the Senate, Democrats
have battled over the most crucial seats - those on the appeals
courts -by threatening to filibuster. (A filibuster is a nonstop
debate, often continuing through the night, that can only
be broken by the votes of 60 senators, which the Republicans
don't currently have.) Western Democratic senators in the
fray include Max Baucus of Montana, Dianne Feinstein of California,
Patty Murray of Washington, and Tom Daschle of South Dakota.
But Bush is persistent. Again and again, he revives nominations
that are stalled or killed. And despite a few defeats, his
nominees have sailed through the Senate in greater numbers
and more quickly than the nominees in Clinton's last term.
Already, Bush has named about 170 new lifetime judges.
"There's no effort on the part of Bush to pretend he
is looking for moderate appointees," says Judge Reinhardt.
"When he ran for election, he said he'd look for judges
like Clarence Thomas and Antonin Scalia" - the leading
right-wingers on the Supreme Court, named by Bush's father
and by Reagan, respectively - "and that's what he's doing."
Pending nominees include Janice Rogers Brown, another property-rights
champion. Brown seeks a seat on the D.C. Circuit Court of
Appeals, which handles many cases related to federal regulations
and federal land, because federal agencies are headquartered
in D.C.; she's opposed by
48 environmental and planning organizations.
William Myers, a longtime lawyer for cattlemen and mining
companies, who has often challenged regulations on public
lands, seeks a seat on the 9th Circuit Court of Appeals, which
has jurisdiction over half the West. While serving a brief
stint as the top lawyer in Bush's Interior Department, he
was targeted by conflict-of-interest investigations. His nomination
to be a judge seems like the ultimate conflict of interest,
and is opposed by more than 60 environmental and tribal groups,
including the National Congress of American Indians, which
represents more than 250 tribal governments.
"Myers is not a scholar. He doesn't have extensive litigation
experience. He's an industry lobbyist," says Glenn Sugameli,
who leads the Earthjustice effort to watchdog the nominees.
"He has very extreme views on the environment, and endangered
species, and wetlands ' the same views as a number of the
other nominees, but he's coming at it directly from the perspective
The scales are tilted
In raw numbers, Republicans have named 57 percent of the
lifetime judges on the bench now, according to Alliance for
Justice, another watchdog group, including majorities on most
of the appeals courts, the Supreme Court and the Court of
Federal Claims. What does that mean for environmentalists'
Folklore has it that once a person dons the robe, the politics
drop away. Cases are supposed to be decided on their merits,
the facts, and the persuasiveness of the lawyers' arguments.
Even if Bush appointed every federal judge in the system,
it shouldn't mean that environmentalists never win another
"All the institutional incentives, once they're on the
bench, drive them in the direction of being responsible and
even-handed judges," says Georgetown's Echeverria. "A
judge's highest ambition is to be known as an intelligent,
scholarly, fair-minded, efficient decision-maker" who
is rarely reversed on appeal.
But the law is a labyrinth, complex and convoluted, and there
is some room for judges to express themselves, consciously
or subconsciously. Even Echeverria sees politics and ideology
operating at the "margins of high-profile cases, including
environmental disputes." Others see more direct effects.
The notion that personal leanings disappear is "a mythological
tale," says William Rodgers, who teaches environmental
law at the University of Washington. "For every story
like that, there are 10 of the other stripe, where the president
who appointed the judge gets just what he hoped for."
In an exhaustive number-crunching exercise, Richard Revesz,
dean of New York University Law School, reviewed about 250
environmental cases in the D.C. Circuit Court of Appeals from
1970 to 1994. He found that judges appointed by Democrats
are more likely to agree with environmentalists, while judges
appointed by Republicans tend to favor industry.
There are Republicans who break the pattern. District Judge
James A. Parker, for example, a Republican appointed by Reagan,
has come down on the side of endangered fish in the Southwest
But since this prolonged round of court-stocking began, environmental
lawyers point to three primary trends in court rulings that
threaten the foundations of many environmental cases. "These
are critical and hotly contested constitutional disputes that
will decide the fate of modern environmental law," Kendall
First, judges are ruling for "takings" claims in
new ways, which could make it much more expensive, or impossible,
to enforce many environmental regulations. A recent example
came in January, when Court of Claims Judge John Paul Wiese
decided the federal government must pay at least $14 million
to California farmers who surrendered some water for endangered
fish in the Tulare Lake region. Wiese, a Democrat appointed
by Reagan, has written that under the Endangered Species Act,
"the federal government is certainly free to preserve
the fish; it must simply pay for the water."
Second, courts are more open to arguments limiting the scope
of the crucial "Commerce Clause" ' a few words in
the Constitution that allow the federal government to regulate
matters that cross state lines.
Since the 1930s, the Commerce Clause has been broadly interpreted
to be the basis of federal laws governing many issues, including
air and water pollution. But since 1995, in cases involving
wetlands, wolves and Superfund cleanups, some judges have
indicated that the Commerce Clause doesn't allow the government
that much authority.
Third, some judges show increased skepticism over whether
environmental groups and individuals have the "standing"
to file lawsuits against government actions that may harm
the environment. One famous Supreme Court justice in the past,
William O. Douglas, wrote in a 1972 opinion that "trees
should have standing" in lawsuits, and that since trees
couldn't file the paperwork, environmentalists could. But
these days, that judicial openness to environmental values
is itself an endangered species.
"Many judges are simply unwilling to issue (favorable)
rulings in environmental cases, even when there are very important
environmental issues at stake, and clear violations of the
law," says Laird Lucas, who has practiced environmental
law for a decade and is now senior counsel for Western Resource
Advocates in Boise.
Venue shopping gets harder
All this makes it more difficult for environmental attorneys
to go "venue shopping," the legal maneuvering that
has occurred in many cases, including the coalbed methane
case in Billings. Litigation has become more of a crapshoot.
When environmental groups challenged the Bush plan for continued
snowmobile tourism in Yellowstone National Park, they went
to court in D.C., where they drew Judge Emmet Sullivan, one
of the nation's greenest judges. Sullivan is the judge who
has ordered Vice President Dick Cheney to cough up the records
of his Energy Task Force meetings with industry executives,
a case now on appeal to the Supreme Court. He ruled in favor
of the Yellowstone snowmobile ban in December (HCN, 1/19/04:
Yellowstone snowmobilers suffer whiplash) .
But on the same issue, when snowmobile interests fought the
ban on snowmobiles in Yellowstone, they went to court in Wyoming,
where the case was picked up by Judge Clarence Brimmer, who
often rules against environmental concerns. Brimmer has indicated
he's sympathetic to the snowmobilers; in a hearing in January,
he said he might "ignore" the D.C. ruling. When
an Earthjustice lawyer complained that the snowmobilers were
venue shopping, according to The Associated Press, Brimmer
shot back, "Kind of like you folks did. You did an end
run to Washington."
If a case lands in the wrong hands, there is little that
can be done about it. When lawyers suspect that a judge is
biased, they can dig for evidence and try to get the judge
removed from a case. But it's almost impossible to prove bias,
and they risk offending the judge in question.
Judge Brimmer had at least $400,000 invested in oil and gas
companies and in company royalties when he accepted a case
in which Wyoming's government challenged the Clinton roadless
initiative, which protected 58 million acres of forest from
development. Brimmer ruled the roadless initiative was illegal
in 2003 and tossed it out.
Public-interest groups in D.C. filed a complaint against
Brimmer with the Judicial Council of the 10th Circuit Court,
charging that he had a conflict of interest in the roadless
case. But the council ' composed of judges ' decided those
groups didn't have the right to complain, because they weren't
directly involved in the case. Brimmer said none of his investments
were helped by his ruling, and the Wyoming State Bar passed
a resolution saying that Brimmer had "the absolute highest
standards of ethics and professionalism."
But Brimmer's decision is still in the center of controversy.
Edward Lodge, another Republican-appointed district judge
in Idaho, also tossed out the roadless initiative. The appeals
court in San Francisco overruled Lodge. Brimmer's decision
is being challenged in the appeals court in Denver, which
may or may not agree with the San Francisco judges.
And if Brimmer does issue a ruling on snowmobiles that conflicts
with the D.C. ruling, "it would create tremendous chaos,"
says Michael Scott, director of the Greater Yellowstone Coalition,
one of the groups involved in the snowmobile cases. "The
National Park Service could be in position of having two courts
telling it to do opposite things."
The Park Service wouldn't be alone. Different judges have
recently ordered the Army Corps of Engineers to reduce flows
in the Missouri River for endangered species, for example,
and also to keep flows up for barges.
Forecast is for increasing chaos
The coalbed methane case argued in Billings seems to be heading
into similar chaos. Since the December hearing, Judge Anderson
has ruled that a portion of the case can be moved to Wyoming;
some issues, however, will be kept in his court. The judge
acknowledged that his court and the Wyoming court "may
reach different conclusions."
It's evidence of the collisions that occur when politics
shape the federal bench toward ideological ends. Nonetheless,
President Bush seems bent on continuing his crusade. When
he delivered his State of the Union speech on Jan. 20, Bush
kept up the pressure, railing against "activist judges
... who insist on forcing their will on the American people,"
while at the same time revealing his own activism by criticizing
"needless federal regulation."
It's particularly significant, because at the top of the
court system, the Supreme Court is about to change. There
hasn't been a new appointment to the high court since Clinton
named Stephen Breyer in 1994. Two or more elderly justices
are ripe for retirement, so Bush may get an opportunity there,
If Bush gets re-elected, and Republicans hold the Senate,
it could shape up as an all-time run of ideological appointments
to the courts. The prospect raises the stakes in this November's
Environmental and civil rights groups combat the Bush effort
as best they can ' trying to rally the public to express concern
to senators, and raising the issue's profile for the November
elections. They're digging into the backgrounds of the most
questionable nominees, producing up-to-the-minute Web sites
on their status, and tracking changes in the political balance
of the different courts.
"The administration is sending deliberate signals on
the hot-button issues," Earthjustice's Sugameli says.
"They think they're winning votes, think they're energizing
their political base - the corporations that are the most
extreme polluters, the ones who are the most opposed to civil
rights, opposed to women's rights, to workers' rights.
"But the public wants moderate nominees," he says.
"The public doesn't want to go back to the 1930s or the
1890s in terms of environmental protection and protection
of all sorts of other basic rights. Most people don't want
to repeal decades of progress," he says, "so (the
Bush administration) is really energizing people on our side."
Ray Ring is HCN's editor in the field in Bozeman, Mont. Freelance
writer John Clayton, of Red Lodge, Mont., helped set the scene