Environmental Protections Require Fair Independent Replacement for Stevens

April 13, 2010
Guest Post

By Glenn Sugameli, Staff Attorney, Judging the Environment

Supreme Court Justice John Paul Stevens's retirement highlights just how much Americans rely on fair and independent judges to uphold and enforce laws that protect people and our environment.

Federal courts decide the fate of lawsuits that attack safeguards for clean air, clean water, endangered species, and special natural places.

Judges must uphold anti-pollution and conservation laws against unjustifiable claims that their enactment exceeded Congress' Commerce Clause authority, and that they take away non-existent "property rights" to pollute.

Environmental and other laws are seriously threatened by interlocking factors.

Continuing long-term right-wing and industry efforts try to redefine judicial selection and the nature and results of constitutional and statutory interpretation and rulings. Aggressive litigation attempts to rewrite laws and the Constitution in order to bar citizen access to court (while allowing polluters to sue) and to overturn environment, health and other laws.

Steven Michael Teles' book describes how environmental laws became a target of The Rise of the Conservative Legal Movement: The Battle for Control of the Law. My Judging the Environment project was launched in the wake of a 2001 Report: "Hostile Environment: How Activist Judges Threaten Our Air, Water, and Land."

Since then, the threat has grown worse. Cass Sunstein' Radicals in Robes describes "property rights" lawsuits and other attacks on environmental laws. The Environmental Law Institute's Endangered Environmental Laws initiative documents how "constitutional arguments that target the validity of environmental laws are picking up new momentum in the federal courts and enjoying increased popularity among conservative legal scholars."

As I described previously at ACSblog, President George W. Bush apparently chose key lifetime appellate and district judges because of their extreme views. Many were confirmed; increasing the chances for extreme anti-environmental decisions.

Current efforts to balance the courts by filling federal judicial vacancies have been frustrated as Senator objections are unjustifiably delaying and blocking noncontroversial Obama judicial nominees (e.g., Barbara Keenan's 4th Circuit confirmation required a 99-0 cloture vote). Judicial vacancies have increased to over 100, despite being decreased by a Democratic Senate under Pres. G.W. Bush.

Environmental and other laws are also threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent.

Justice Breyer best asessed the Roberts Court's tendency towards 5-4 decisions overruling important civil rights, labor, antitrust, and other precedents: "It is not often in the law that so few have so quickly changed so much."

Supreme Court rulings can cut off vital access to courts. The first bill President Obama signed was the Lilly Ledbetter Fair Pay Act, which overturned a 5-4 decision that violated congressional intent by ignoring real-world realities and preventing victims from enforcing their rights.

Justices also have rewritten laws and redefined the Constitution's "Cases and Controversies" clause into a series of selective trap doors that thwart statutory environmental safeguards and citizen suit provisions while allowing polluter lawsuits. In Lujan v. Defenders of Wildlife (1992), Justice O'Connor joined a dissent that condemned Justice Scalia's plurality opinion as "a slash-and-burn expedition through the law of environmental standing."

The Supreme Court is narrowly and deeply split on critical issues for environmental protection. Justice Kennedy generally casts the deciding vote, while Chief Justice Roberts and Justices Alito, Scalia, and Thomas favor extreme anti-environmental positions.

In Massachusetts v. EPA, these four right-wing justices attempted to rewrite the Clean Air Act to exclude greenhouse gases, and to selectively cut off court access. Their dissent misread the Constitution to bar such lawsuits even by States that had already lost coastline (but polluters could challenge any laws or agency actions that might impact their profits).

These justices have been more successful in their efforts to gut the Clean Water Act. Their "revisionist" plurality opinion in the 2006 Rapanos case displayed "antagonism to environmentalism," in the words of the four dissenting Justices. The "impropriety of crafting these new conditions [on Clean Water Act jurisdiction] is highlighted by the fact that no party or amicus has suggested either of them .... [T]he plurality disregards ... its own obligation to interpret laws rather than to make them."

Fortunately, Justice Kennedy wrote a separate concurring opinion in Rapanos, but the end result created confusion which undermined the law. Citing the EPA, The New York Times recently reported that the Court rulings could exclude Clean Water Act jurisdiction for drinking water sources for 117 million Americans and have caused more than 1,500 major pollution investigations to be dropped or put on hold in the past four years.

Resources: Defenders of Wildlife's Judging the Environment (JTE) project highlights environmental stakes in nominations to lifetime federal judgeships, and in court decisions on environmental and cross-cutting constitutional and statutory issues. The JTE website includes links to and excerpts from more than 870 Senator Statements and more than 2,500 editorials and commentary.

[Image via papalars.]