Introduction

Our nation's environmental protections constitute one of this country's most significant accomplishments of the second half of the 20th century. Through years of effort, visionary leaders and environmental activists 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 the U.S. 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 serious 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 Clause¹ and the U.S. Commerce² Clause of the U.S. Constitution that would frustrate or repeal most federal environmental statutes.