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Executive Summary

Our nation's environmental protections constitute one of this country's most significant accomplishments of the second half of the twentieth century. Through years of effort, visionary leaders and environmentalists have successfully translated public support for protecting natural resources -- our air, water, and land -- into effective and far-reaching legislation. Enjoying widespread popular support and bipartisan endorsement in Congress, these statutes have been strengthened in both Republican and Democratic administrations, and they have survived repeated, industry-funded rollback attempts.

These protections now face a grave challenge in an unlikely venue: our nation's federal courts. A group of highly ideological and activist sitting judges are already threatening the very core of environmental law. New appointees to the bench could transform this threat into a death sentence for many environmental protections. In the last decade, judges have imposed a gauntlet of new hurdles in the path of environmental regulators, slammed the courthouse doors in the face of citizens seeking to protect the environment, and sketched the outline of a jurisprudence of "economic liberties" under the Takings and Commerce Clauses of the Constitution that would frustrate or repeal most federal environmental statutes.

These judges -- most of them appointed to the bench by Presidents Ronald Reagan and George H.W. Bush -- are engaging in anti-environmental judicial activism. They read into the Constitution powers of judicial oversight that courts have never previously exercised. They ignore statutory language and intent, substituting instead their own policy preferences. Although their opinions sometimes pay lip service to the benefits of environmental protections, their activist ideology leads them to invalidate these safeguards. They do this despite the widespread support our environmental laws enjoy among our elected representatives and the American people.

Here's how questionable legal theory translates into environmental harm:

Commerce Clause: Preventing Congress from Protecting the Environment. Certain justices on the U.S. Supreme Court, as well as several judges presiding in various lower federal courts, have attacked the longstanding acceptance of the Constitution's Commerce Clause as the source of Congress's authority to enact safeguards to protect our air, water, and land. Despite the clear connection between the subjects of environmental regulation -- such as commercial development or chemical manufacturing plants -- and interstate economic activity, some judges are beginning to argue that these activities should fall within the exclusive control of states. In one recent case, a district judge in Alabama blocked the federal government's efforts to enforce toxic waste cleanup requirements because he decided the chemical manufacturing site was a local real estate matter, not economic activity subject to federal control.

Takings Clause: Paying Polluters Not to Pollute. The Fifth Amendment's Takings Clause has provided another avenue of attack on fundamental environmental protections. The text and original understanding of this clause are quite narrow, requiring the government to pay private property owners when it expropriates or permanently occupies private land for public use. Nothing in the text, history, or jurisprudence of the Takings Clause suggests that the public should pay corporations for simply complying with environmental protections and otherwise following the law. In the last several years, however, some judges have used the Takings Clause to strike down environmental protections unless the government pays landowners compensation. Taxpayers must therefore pay polluters not to pollute.

Eleventh Amendment: Excusing States from Compliance with Environmental Laws. Judges also have twisted the Constitution's Eleventh Amendment to excuse states from complying with federal environmental laws. The Eleventh Amendment's plain language prevents a federal court from hearing a suit brought against a state only by a citizen of another state or another country. Some judges have departed from the amendment's narrow text to prevent citizens from suing their own states for environmental violations. In a recent case, an appeals court used the Eleventh Amendment to reject a citizen suit against West Virginia mining companies that were removing mountaintops and discarding their waste into nearby streams.

The Standing Revolution: Keeping Environmental Plaintiffs Out of Court. Finally, some judges are promoting novel theories limiting the standing of environmental citizen groups to go to court. The U.S. Supreme Court, in a series of opinions written by Justice Antonin Scalia, has distinguished between the object of regulation (e.g., a corporate polluter) and the beneficiary (e.g., a citizen trying to stop pollution). Scalia has used this distinction to exclude environmental plaintiffs from court even when the applicable environmental statute contains an explicit provision authorizing citizens to sue. Under Scalia's approach, timber companies, mining conglomerates, chemical manufacturers, and the like get open access to the courts to object to regulation that they perceive to be burdensome. Citizen groups on the other hand are denied access to the court, leaving widespread environmental harms without review.

In addition to these high profile constitutional fights, environmental statutes are suffering a death from a thousand cuts in non-constitutional cases as anti-environmental judges ignore the intent of Congress expressed in statutory text and legislative history. This trend is particularly evident on the U.S. Court of Appeals for the D.C. Circuit, a critical court empowered to hear most challenges to environmental decisions made by federal agencies. In the last decade, the D.C. Circuit has struck down a long list of environmental protections under several statutes including the Clean Air Act, Clean Water Act, and Endangered Species Act. The rationale seems to differ in every case. In one case, the court invoked an obscure doctrine of statutory construction to justify ignoring the plain meaning of the word "harm." In another, the court imposed an unfair double standard that benefits industry petitioners, while imposing an often insurmountable hurdle in front of environmentalists. Too frequently, however, the result is the same: extensive empirical research indicates that judges on the D.C. Circuit and around the country are letting their ideology influence their decision making in environmental cases.

Anti-environmental activists have not only disregarded the plain meaning of our laws and of decades of binding precedent, in some cases they have manifested overt hostility to the environment through extreme rhetoric. Certain judges have belittled our government officials who are charged with protecting the environment as "extortionists" and "pointy heads." Another judge refused to impose a proper sentence for environmental crimes under federal sentencing guidelines because to do so, in his view, would be "crazy." Another referred to an endangered species as mere "bugs smashed upon [our ] windshields." One judge went so far as to declare Earth Day celebrations as an unconstitutional establishment of the "Gaia" religion. Their anti-environmental personal policy preferences could not be more clear or more out of keeping with the views of the overwhelming majority of the American people.

Such anti-environmental activism in the courts was never supposed to happen. Former Presidents Reagan and Bush promised the country judges who interpret laws, rather than usurp Congress's power to make them. In too many cases, however, the judges appointed by these presidents have ignored this promise, proving instead to be openly activist and hostile to established environmental protections. With numerous vacancies on the federal courts, the new Bush administration will have a tremendous impact on the credibility of our judicial system and the results it produces. New judges must enforce the protections mandated by our landmark environmental laws -- like the Clean Water Act and the Clean Air Act. The nation cannot afford any new judges who take the bench inclined to undermine longstanding precedents with personal activism.

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