FOR IMMEDIATE RELEASE: July 18, 2001
CONTACT: Jenny Murphy, Fenton Communications, 202/822-5200
Jan Vertefeuille, Environmental Media Services, 202/463-6670
Washington – As Senate hearings
get under way for President Bush’s judicial nominees, a study
of federal court rulings over the past decade reveals a pattern
of anti-environmental judicial activism that threatens long-standing
environmental protections. In response, leaders of the nation’s
top green groups announced a coordinated effort to begin monitoring
President Bush's nominees for the federal bench.
An analysis of federal rulings from the
last 10 years found that a group of highly ideological judges
– most appointed by former Presidents Reagan and Bush – has
disregarded norms of judicial conduct to shape a new judicial
philosophy that threatens core environmental protections.
The analysis, conducted by the Alliance for Justice, Community
Rights Counsel and the Natural Resources Defense Council,
was released today at a press conference on Capitol Hill.
A dozen national environmental
organizations, led by Earthjustice,
also called on members of the U.S. Senate to consider the
views of nominees on issues related to environmental protection,
including citizens’ access to the courts. This is the first
time environmental organizations have mounted a national effort
to scrutinize the records of those named to the federal bench.
“In pursuit of anti-environmental
activism, judges have repeatedly ignored basic principles
of judicial fairness to shut citizens out of the courthouse
and create new rights for polluters,” said Greg Wetstone of
the Natural Resources Defense Council. “We will be urging
our senators to look for judges who won’t ignore the rule
of law and substitute their personal views for democratically
adopted environmental laws.”
“This pattern of anti-environmental
rulings is disturbing to anyone concerned about protecting
our environment,” said Nan Aron of Alliance for Justice. “These
judges are striking down long-standing safeguards for our
air, water and land, even though these laws enjoy overwhelming
support from the American people.”
The findings are detailed
in the report, “Hostile
Environment: How Anti-Environmental Federal Judges Threaten
Our Air, Water and Land.” According to Community Rights
Counsel's Doug Kendall, one of the report's authors: “Our
analysis found that activist federal judges are developing
a broad array of questionable legal theories to try to justify
the results they want at the expense of environmental protection.”
There are currently 112 vacancies
on the federal bench, giving President George W. Bush an immediate
opportunity to significantly shape the federal judiciary.
Bush has named as “model” judges Supreme Court Justices
Antonin Scalia and Clarence Thomas – both cited in the report
for promoting anti-environmental activism.
concern that if Bush’s appointees follow in the footsteps
of his father’s and Ronald Reagan’s, they will dismantle federal
statutes passed by Congress and further limit the ability
of citizens to file suit against polluters.
"The judicial appointment
process is rarely thought of as an environmental issue, but
it should be," said Buck Parker of Earthjustice. "Federal
judges play a critical role in the implementation and enforcement
of the laws that protect our nation's clean water, clean air,
communities and special natural places. Environmental
groups and concerned citizens expect that the judges appointed
to the federal bench will uphold rather than undermine the
important environmental laws passed by Congress."
Legal areas under assault
by activist judges include:
The Commerce Clause. Anti-environmental
activists are undermining the Constitution’s Commerce Clause
as the source of Congress’s authority to enact safeguards
to protect our air, water and land.
The Supreme Court recently invalidated protections
for millions of acres of lakes and wetlands and suggested
that Congress may lack authority to enact new safeguards.
In another case, an Alabama judge declared that a toxic
waste cleanup was a local matter, not subject to federal control.
“Standing.” Anti-environmental activists
are inventing novel theories limiting the rights, or "standing,"
of citizens to go to court to prevent environmental damage.
Under this view of standing, advanced most notably
by Justice Scalia, timber companies, mining conglomerates
and manufacturers have open access to the courts to challenge
regulations they dislike. Citizen groups, on the other hand,
are excluded, leaving widespread environmental harms unaddressed.
Takings Clause. Anti-environmental activists
are rewriting the Constitution's Takings Clause in a way that
requires taxpayers to pay corporations for complying with
In recent cases, courts have required compensation
for laws restricting mining in the Everglades and the use
of powerful motorboats in wilderness areas.
The result is taxpayers must pay polluters not to pollute.
The 11th Amendment.
Anti-environmental activists have twisted the Constitution’s
11th Amendment to excuse states from complying with federal
In one recent case, an appeals court used the 11th
Amendment to allow mining companies in West Virginia to continue
"removing" mountaintops by blasting them off and
dumping their waste into nearby streams.
Statutory Construction and Administrative
activists have applied a double standard to rule against the
environment on questions of statutory interpretation and administrative
law, such as determining the intent of Congress or whether
an agency action has been adequately explained and corroborated. Over
the past decade, judges have used this double standard to
undermine environmental protections under the Clean Air Act,
Clean Water Act, Endangered Species Act and other laws.
a copy of “Hostile Environment: How Anti-Environmental Federal
Judges Threaten Our Air, Water and Land,” call Rob Perks,
202/289-6868, or go to www.communityrights.org.
To read the full version of the report in
PDF, click here.
To read the Executive Summary of the report,