32 ELR 10835 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Conservative Judicial Activism and the Environment: An Assessment of the Threat

Douglas Kendall is the Executive Director of the Community Rights Counsel (CRC). Timothy Dowling is the CRC's chief counsel. Sharon Buccino is a senior attorney with the Natural Resources Defense Council, Inc. (NRDC). Elaine Weiss is the Dorut Foundation Fellow for the Judicial Selection Project at the Alliance for Justice. This Dialogue is an expanded and modified version of an earlier report jointly produced by Alliance for Justice, CRC, and NRDC entitled Hostile Environment: How Activist Federal Judges Threaten Our Air, Land, and Water.

[32 ELR 10835]

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.

The judges issuing and joining these rulings—most of them appointed to the bench by Presidents Ronald Reagan and George H.W. Bush—are engaging in antienvironmental judicial activism. They have read into the Constitution powers of judicial oversight that courts have never previously exercised. They have ignored statutory language and intent, substituting their policy preferences. Although their opinions sometimes pay lip service to the benefits of environmental protections, their activist ideology leads them to invalidate these safeguards.

These judges 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. One judge belittled 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. These antienvironmental personal policy preferences could not be more out of keeping with the views of the overwhelming majority of the American people.

This antienvironmental 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' power to make them. In too many cases, however, the judges appointed by these presidents have ignored this promise, proving instead to be activists, willing to bend rules and precedent to strike down established environmental protections.

The news is not all bad. The U.S. Supreme Court's recent 6-3 decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency³ indicates quite plainly that conservative Justices such as Anthony M. Kennedy and Sandra Day O'Connor are uncomfortable with antienvironmental judicial activism and unwilling to blindly follow the so-called property rights movement and others in improperly resurrecting "economic liberties" under the Takings Clause and other constitutional provisions in a way that thwarts critical health, safety, and environmental protections.

The split among conservative Justices in the Tahoe-Sierra decision yields two lessons for those concerned with the future of environmental law in the courts. First, it indicates that Justices Kennedy and O'Connor are willing to repudicate extreme theories even on issues, such as protecting private property, that are clearly dear to them. This, in turn, means that environmentalists must be vigilant in pursuing a litigation strategy that brings to the Court issues and fact patterns that encourage the "swing" Justices to reject the radical arguments advanced by special interests.

Second, it suggests that environmentalists must focus intensively on the appointments President George W. Bush makes to the Court and lower federal courts. Historical odds suggest strongly that President Bush will be called upon to fill at least one vacancy on the Court. He is already in the process of filling more than 100 vacancies on lower federal courts. Environmentalists need to deliver to the Bush Administration the message that the country cannot afford new activist judges who will disregard the law in an effort to undermine long-standing and critical environmental protections.

[32 ELR 10836]

The Choice: Antienvironmental Activism or Proper Respect for the Law

During the presidential campaign and afterwards, Bush and his advisors have asserted that President Bush will nominate judges who will respect the constitutionally mandated judicial function of interpreting—rather than making—the law. They have indicated that they want judges who will defer to the policy preferences of the American people as expressed in the statutes enacted by their elected representatives, instead of deciding cases according to their own personal will. They have promised judges who will engage in a legitimate reading of the Constitution, not twist constitutional provisions to achieve a desired result. They have said that they seek judges who will pay appropriate deference to established precedent because, absent a very compelling justification, the public should be able to rely on long-standing legal principles without having the rug pulled out from under them through a radical reworking of the law by the judiciary.

While many conservative judges demonstrate just such a respect for the law, others in recent years have abandoned any pretense of restraint and instead embrace a strain of judicial activism that has weakened our environmental protections. Certain judges and nominees who call themselves conservatives are, in reality, activists who would disregard well-established legal precedent and the clear mandates of Congress. Far-right advocates off the bench have encouraged this approach, bluntly calling for judges to usurp the policymaking role of elected officials and illegitimately rewrite the law. One activist group views their mission to be convincing conservatives that "conservative judicial activism is neither an oxymoron nor a bad idea."⁴ Another prominent activist has expressed concern that "the Reagan Revolution will come to nothing" unless Republican appointed judges engage in activism to advance a conservative political agenda.⁵

Antienvironmental activism is controversial even within conservative legal circles. Consider the debate over the Takings Clause. As discussed below, the clause has emerged as a principal vehicle for advancing antienvironmental activism. Justices on the Court and the two lower courts with jurisdiction over most takings claims against the government have distorted the Constitution's language to undermine critical environmental safeguards, such as those protecting wetlands and endangered species. This activism derives in large measure from the views of Prof. Richard Epstein, who argues that the Takings Clause renders "constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers' compensation laws, transfer payments, [and] progressive taxation."⁶ Epstein unapologetically calls for "a level of judicial intervention far greater than we have now, and indeed far greater than we have ever had."⁷ His influence on takings activists has been well documented.⁸ Other conservatives, however, emphatically reject Epstein's aggressive reading of the Takings Clause. For example, Charles Fried, solicitor general of the United States under President Reagan, criticized Epstein's "extreme libertarian views" and his aggressive reading of the clause as inspiring a "specific, aggressive, and it seemed to me, quite radical project . . . to use the Takings Clause of the Fifth Amendment as a severe brake upon federal and state regulation of business and property."⁹ Even Robert Bork has criticized Epstein's views as "not plausibly related to the original understanding of the takings clause."¹⁰

Antienvironmental activism has also drawn fire from some conservative judges. Last year, Chief Judge Harvey Wilkinson, a Reagan appointee to the U.S. Court of Appeals for the Fourth Circuit, harshly criticized another Reagan appointee, Judge Michael Luttig, for engaging in antienvironmental activism that would improperly "dismantle" historic federal protections and "sap[] the national ability to safeguard natural resources."¹¹ In rejecting this activism, Chief Judge Wilkinson stressed that it reflects "an indiscriminate willingness to constitutionalize recurrent political controversies [that] will weaken democratic authority and spell no end of trouble for the courts."¹² Another Reagan appointee, Bobby Baldock of the U.S. Court of Appeals for the Tenth Circuit, has condemned "unwarranted conservative judicial activism" as "perhaps a lesser known evil than, but every bit as menacing as, its first cousin liberal judicial activism."¹³

Although his presidency is less than two years old, already President Bush has begun to backtrack on his basic commitments to the American people regarding judicial selection. His first round of judicial nominees includes individuals who have advocated on behalf of principles that underlie antienvironmental activism. For example, Jeffery S. Sutton, nominated to a seat on the U.S. Court of Appeals for the Sixth Circuit, has been a leading advocate of using the Constitution's Commerce Clause and Eleventh Amendment to cut back on federal government power, including the power to protect the environment.

This Dialogue examines how judicial activism is undermining our environmental protections. Whether this trend continues will be up to President Bush and the U.S. Senate. Will President Bush nominate people who respect the appropriate role of the Congress and the states in protecting the environment? Will he keep his word and choose candidates who respect precedent and decide cases based on the facts and the law? Or will he appoint activist ideologues who use [32 ELR 10837] their judicial power to advance their personal political philosophy and antienvironmental agenda? If President Bush chooses the latter course, will the Senate acquiesce or insist that new judges respect the power of Congress and the states to protect the environment?

The Commerce Clause: Preventing Congress From Protecting the Environment

Congress has rooted most of this nation's federal environmental protections in its authority under the Commerce Clause, which grants Congress the right to "regulate commerce among the several states." The reason is simple. Pollution and environmental degradation are external costs of many land uses and manufacturing processes. Theseexternal costs are frequently borne by residents outside of the state in which the pollution or degradation originates. Even wholly intrastate pollution can have significant impacts on interstate commerce; for example, where the despoliation of a lake or river reduces tourism dollars spent by out-of-state vacationers. For decades, the courts have recognized that the Commerce Clause authorizes Congress to regulate such intrastate activities that have a significant effect on interstate commerce.¹⁴

Indeed, between 1937 and 1995, the Supreme Court did not invalidate a single federal statute as being outside the scope of the Commerce Clause. In 1995, in United States v. Lopez,¹⁵ however, the Court ruled that the clause does not authorize federal prohibitions on handgun possession near schools. Five years later, in United States v. Morrison,¹⁶ the Court struck down a federal law prohibiting gender-related violence as outside the scope of the clause. In setting limits on Congress' authority in Lopez, the Court stressed that the regulated activity in that case (handgun possession) was not economic in nature and fell within an area of traditional state control (regulation of local schools). The Court said that the noneconomic nature of the regulated conduct was "central" to Lopez.¹⁷ As a result, Lopez initially appeared to pose little threat to environmental safeguards, the central focus of which is environmental harm resulting from commercial activity.

This initial optimism may be misplaced. Antienvironmental activists on lower courts have viewed the crack in the door made by Lopez as a sign that it is open season for questioning the Commerce Clause authority for federal environmental statutes. Even more disturbing, a slim majority of the Court signaled in a decision last year that it might well extend Lopez and Morrison in a dramatic fashion that could lead the Court to strike down a wide range of environmental protections. The groundwork for pulling the rug out from under federal environmental protections is thus already in place.

The best example of lower court activism in the wake of Lopez is district Judge Brevard Hand's decision in United States v. Olin Corp.,¹⁸ which struck down key provisions of the federal Superfund toxic waste cleanup law.¹⁹ The case involved federal efforts to force a chemical manufacturer to clean up a toxic waste site. Olin Corporation had operated a chemical manufacturing plant in McIntosh, Alabama, for more than 30 years, producing mercury and chlorine-based chemicals that contaminated soil and groundwater around the plant.²⁰ In Olin, Judge Hand ruled that because the site was no longer active, the cleanup of the site was essentially a local real estate matter, not "economic activity."²¹ Because "the law regulating real property has been traditionally a local matter," Judge Hand declared that Congress under the Commerce Clause could not regulate such activities.²²

The U.S. Court of Appeals for the Eleventh Circuit unanimously reversed, quite naturally concluding that intrastate toxic waste disposal significantly affects interstate commerce.²³ For example, a 1980 study showed that agricultural losses from chemical contamination in six states exceeded $ 280 million, and intrastate disposal activities contributed to this harm.²⁴ Improper disposal also harms commercial fishing and other natural resource-dependent interstate commerce.²⁵

Although Judge Hand's view has been rejected by other courts²⁶ and was quickly reversed on appeal, Olin sets a marker as to the breadth of the threat that judicial activism poses to federal environmental safeguards and the danger presented by the potential appointment of more judges with like views. After all, if regulation of toxic waste produced by interstate economic activity does not fall within the scope of the Commerce Clause, then a wide array of environmental protections would also fall outside the clause. Consequently, corporations would be able to avoid regulation of many environmental harms at the expense of neighboring landowners and the community at large.²⁷

Even more disturbing are the potential implications of the Supreme Court's ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).²⁸ SWANCC involved a challenge to the U.S. Army Corps of Engineers' (the Corps') "Migratory Bird [32 ELR 10838] Rule," a long-standing protection for intrastate water bodies and wetland areas that provide important habitat to migratory birds. In a 5-4 ruling,²⁹ the Court invalidated these protections for isolated waters as exceeding the Corps' authority under the federal Clean Water Act (CWA). It gave the Act an exceedingly narrow reading, and refused to give the Corps' reading the deference normally afforded to an expert agency, in large part because it perceived serious constitutional issues under the Commerce Clause.

The Court's suggestion in SWANCC that Congress might lack Commerce Clause authority to protect migratory birds is startling. Ensuring protection of birds that migrate through numerous states is quintessentially a task for the federal government. Indeed, as early as 1920, Justice Oliver Wendell Holmes declared for the Court that the protection of migratory birds is a "national interest of very nearly the first magnitude."³⁰ Justice Holmes explained that the federal government must provide protection because action by the states individually would be ineffectual:

[Migratory birds] can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States.³¹

Nor can the activity regulated in SWANCC possibly be called "noneconomic." A consortium of local governments wanted to fill more than 200 ponds and small lakes in order to build a large municipal landfill that would accept trash from a large portion of Illinois' Cook County.³² The filling of waters and wetlands virtually always is undertaken for commercial purposes.³³ The birds themselves also generate a considerable amount of economic activity. More than 120 bird species had been seen at these ponds and lakes, and the waters served as a large breeding ground for great blue herons. The commercial value of migratory birds is manifest: each year millions of people spend more than a billion dollars in commerce on recreational pursuits related to migratory birds.³⁴ These birds also protect crops and forests by feeding on insects that would otherwise damage these commercial enterprises.³⁵

Nevertheless, the SWANCC majority refused to vindicate the long-recognized, paramount federal interest in protecting migratory birds, preferring instead to rely on what it viewed as the states' traditional authority to control land and water use. As explained by the dissent in SWANCC, however, these federal protections for intrastate waters used by migratory birds do not impinge on local control over land use planning, which is concerned with choosing particular uses for land. Environmental protections do not require any particular use of land, but rather only require that environmental harm be kept within prescribed limits, however the land is used. In the words of the dissent, the CWA "is not a land use code; it is a paradigm of environmental regulation."³⁶

In the wake of SWANNC, certain lower court judges have aggressively used SWANNC to revisit well-settled questions about the Corps' ability to regulate wetlands with a surface connection to navigable waters.³⁷

No case better illustrates the battle between antienvironmental activism and proper respect for congressional policy choices than Gibbs v. Babbitt.³⁸ In Gibbs, Judges Wilkinson and Luttig, two prominent Republican judges, both on the short list for promotion to the Supreme Court, warred over what it means to be a conservative judge. At stake in Gibbs was nothing less than "whether the national government can act to conserve scarce natural resources of value to our entire country."³⁹ Gibbs was a Commerce Clause challenge to federal protections for endangered red wolves that have been reintroduced into federal refuges in eastern North Carolina and Tennessee. The protections prohibit the intentional harming or killing of red wolves that wander onto private land, with exceptions for the defense of human life and the protection of livestock or pets.

Chief Judge Wilkinson, writing for the majority on the Fourth Circuit, upheld the wolf protections because the regulated activity significantly affects interstate commerce, and because the protections are part of a comprehensive program of federal protections for endangered species. The majority concluded that the provision regulate economic activity because one main reason people kill wolves is to protect commercial assets like livestock. The court also observed that red wolves generate interstate commerce through tourism and scientific research related to the wolves, and [32 ELR 10839] through commercial trade in pelts. Experts estimate that red wolf recovery could result in more than $ 354 million in additional tourism-related commerce in Great Smoky Mountains National Park alone.

The court observed that other federal courts have uniformly upheld species protections against Commerce Clause challenges based on the same factors. On the facts before it, the court recognized that invalidation of the red wolf protections "would start courts down the road to second-guessing all kinds of legislative judgments."⁴⁰ It concluded that the proper balance between species protection and landowner concerns "is grist for the legislative and administrative mill and beyond the scope of judicial competence."⁴¹ As a matter of constitutional policy, the court also acknowledged that invalidation of the wolf protections would throw much federal environmental law into question, thereby subjecting interstate companies to "a welter of conflicting obligations" imposed by the states.⁴²

Judge Luttig dissented and urged an activist application of the Commerce Clause to strike down the wolf protections. Luttig dismissed with little explanation the connection between protecting endangered wolves and interstate commerce. He summarily rejected the idea that reducing wolves will reduce the number of out-of-state visitors who come to North Carolina for howling events to hear the wolves and learn more about them.⁴³ Without offering any evidence to the contrary, he also dismissed the scientific studies documenting that red wolves can increase shore bird nesting by reducing raccoon predation.⁴⁴

Even Judge Wilkinson, a hero to conservatives and no particular friend to the environment, recognized the extreme nature of Judge Luttig's theories and the fundamental threat they posed to the public's faith in the judicial system. According to Judge Wilkinson, the dissent's activist approach "would rework the relationship between the judiciary and its coordinate branches"⁴⁵ and "turn federalism on its head" because species protection is a historically federal function.⁴⁶ The majority described as a "mystery" the dissent's view as to the inconsequential status of the red wolf, and stressed that "it cannot be that the mere expression of judicial derision for the efforts of the democratic branches is enough to discard them."⁴⁷ Judge Luttig's dissent is the paradigm of antienvironmental activism: it represents a result-oriented disregard of the facts and the law that seeks to further the judge's apparent policy preference for less environmental protection.

When he joined the majority in Lopez to strike down the gun possession law at issue, Justice Kennedy wrote separately to emphasize the importance of Congress' Commerce Clause authority to our society. Although he determined that the specific law in question exceeded Congress' authority, he made clear that such judicial invalidation should be undertaken only with great caution. Because so many commonplace federal protections are rooted in the Commerce Clause, he stressed that "the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point."⁴⁸ Respect for precedent "operates with great force in counseling us not to call into question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature."⁴⁹ In other words, the Court should not turn back the clock on modern reality by reverting to an 18th century notion of our national economy.

Our environmental laws stand as a prime example of federal safeguards on which the American people have reasonably come to rely for the protection of public health, our communities, and our natural resources. SWANCC shows that our federal environmental protections already hang in a precarious balance. A small change in the make up of the Court could result in an aggressive campaign to use the clause to roll back scores of environmental safeguards. And because the Court hears so few appeals from lower court rulings, the appointment of activists to federal appellate courts and federal district courts also would jeopardize many environmental programs.

The Takings Clause: Paying Polluters Not to Pollute

The most ballyhooed vehicle for antienvironmental activism is the Fifth Amendment's Takings Clause, which states: "Nor shall private property be taken for public use, without just compensation."⁵⁰ The Takings Clause is an odd choice for judicial activists. The text of the Takings Clause is narrow and the Framers' original intent is clear: the Takings Clause was intended to apply only to actual expropriations, not to government regulation of property. Writing for the Court in 1992, Justice Antonin Scalia recognized that the Takings Clause was originally understood to apply only to actual physical expropriation or invasion of property by the government.⁵¹ Although the Court has applied the Takings Clause to land use regulation for several decades,⁵² it generally does so only in the "extreme circumstance] ["⁵³ in which regulation is so burdensome as to constitute the functional equivalent of a physical appropriation of property.⁵⁴

Despite the Takings Clause's narrow, plain meaning and original interpretation, property rights extremists and certain activist judges are attempting to rewrite this clause to attack all manner of environmental protections. The so-called property rights movement brings activist judges a steady stream of cases that provide opportunities to use the Takings [32 ELR 10840] Clause to undermine environmental protections. Although these cases include challenges to a wide range of government protections, environmental safeguards are a special target of takings activism, particularly protections for wetlands and endangered species. The ultimate goal of takings activists is to require the government to pay corporations and other landowners whenever regulation limits the use of property, an approach that would either bankrupt the government or result in far fewer protections for the environment and other vital public interests.⁵⁵

Prior to the Court's recent decision in Tahoe-Sierra, discussed below, the Court had ruled in favor of developers and other property owners in an unbroken string of high-profile cases over the course of nearly 15 years. While these rulings were all relatively narrow, they fueled greater activism by lower court judges and reflected an untoward eagerness to overcome procedural obstacles in order to uphold takings claims. For example, in Nollan v. California Coastal Commission,⁵⁶ the Court addressed a requirement that owners of beachfront lots obtain a permit from the California Coastal Commission if they wished to increase development on such lots. Typically, when granting such a permit, the commission demanded a concession from the landowner to mitigate the burdens the development imposed upon the community. In Nollan, the Coastal Commission demanded that the Nollans' allow the public to pass along the beach below a seawall that separated the Nollans' house from the ocean.⁵⁷ In a 5-4 ruling, the Nollan Court invalidated the public-access requirement.

To reach the merits, the Court had to overcome a number of important procedural obstacles. As an initial matter, the Court ignored serious questions about whether the Nollans even owned the beachfront passageway that the state allegedly "took" through its regulation. As California argued in Nollan, the Coastal Commission only sought a passageway on land that was frequently below the mean high-tide mark and, thus, arguably state property.⁵⁸

The Nollan Court also had to ignore the fact that, while their permit appeal was pending, the Nollans built their proposed house without a permit. Under California law, this illegal, unilateral action by the Nollans waived their right to challenge the conditions imposed on their development permit. California raised this point in seeking dismissal, but the Court simply denied California's motion without comment and proceeded to address the merits of the Nollan's claim.

Lucas v. South Carolina Coastal Council,⁵⁹ a 1992 case involving a development restriction imposed by South Carolina's 1988 Beachfront Management Act, provides an even stronger example of the Court's willingness to ignore procedural obstacles to rule for takings claimants. The first hurdle cleared by Justice Scalia's opinion in Lucas was ripeness. South Carolina had amended the Act before the Court reviewed the case and, under the new legislation, Lucas could have applied for a special permit to build on his seaside lots. As a result, Lucas' permanent takings claim—the only claim he prevailed on at trial and the only claim he appealed to the Court—was not ripe because Lucas had never applied for a permit under the new statute. Justice Scalia conceded this point, concluding in the first pages of his opinion that Lucas' permanent taking claim was not ripe.⁶⁰ Instead of dismissing the case, however, the Court addressed a question that had not even been briefed by the parties—whether Mr. Lucas had suffered a temporary taking between 1988, when the initial act was passed, and 1990, when the act was amended.⁶¹

This creative hurdling of the ripeness barrier created another procedural problem: standing. As Justices Harry Blackmun and John Paul Stevens pointed out in dissent, Lucas had not built on his property for 18 months before the ban on development went into effect; indeed, he testified at trial that he was "in no hurry" to build on his vacant lot "because the lot was appreciating in value."⁶² Equally significant, the trial court had made no findings that Lucas had any plans to use the property between 1988 and 1990. In short, after a trial on the merits on his claims, Lucas had not shown that he was injured in any way by not being able to construct a residence from 1988 to 1990. As a result, Lucas lacked the "injury-in-fact" predicate necessary to have standing to bring a temporary takings claim. As Justice Scalia had opined just days before in denying standing to an environmental group, "'some day' intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the 'actual or imminent' injury that our cases require."⁶³

Prof. Richard Lazarus, the attorney for the Coastal Council before the Court, aptly summarized the Court's disposition of Lucas as follows:

The majority surmounted a range of obstacles to reach the merits of the case, including ripeness, standing, and the sheer improbability of the lower court's factual findings. The Court's generosity towards the landowner contrasts sharply with its refusal to consider the state government's challenge to the trial court's findings of fact. The Lucas majority was clearly determined, and impatient, to issue a ruling favorable to the landowner.⁶⁴

The Court's takings rulings in favor of developers, coupled with the expansive dicta used by Justice Scalia and Chief Justice William H. Rehnquist, has fueled a greater and far more disturbing activism by lower federal court judges.

[32 ELR 10841]

Wetlands Protections: Florida Rock Industries, Inc. v. United States⁶⁶

Although few citizens may have even heard of the U.S. Federal Circuit Court of Appeals, this court—given its exclusive jurisdiction over most takings claims against the United States—has tremendous power over widely treasured environmental safeguards such as those protecting wetlands and endangered species.⁶⁵ Probably the most significant activist takings ruling from the lower courts is the Federal Circuit's 1994 opinion in Florida Rock. Florida Rock is a large commercial mining operation that sought to extract limestone from more than 1,500 acres of wetlands in the Everglades region of southern Florida.⁶⁷ The Corps denied Florida Rock a permit to do so citing (1) concerns about the pollution that inevitably accompanies limestone mining and (2) the destruction of the wetland, which filters and recharges the underlying Biscayne Aquifer and serves as critical habitat for the unique flora and fauna that inhabit the Everglades ecosystem.⁶⁸ Even with the restriction on mining, Florida Rock received purchase offers for the property that would have allowed them to recover more than twice their original purchase price.⁶⁹

Despite Florida Rock's ability to double its original investment, the Federal Circuit ruled that the Corps' permit denial might have taken Florida Rock's land.⁷⁰ Ignoring a century of Supreme Court cases interpreting the Constitution's Takings Clause, the Federal Circuit held the government may have to pay compensation for "partial regulatory taking[s]," or reductions in property value caused by regulations.⁷¹ On remand, Judge Loren A. Smith of the Court of Federal Claims found that a partial taking had indeed occurred.⁷² When compound interest, attorneys' fees, and costs are added in, the federal government could end up paying Florida Rock tens of millions of dollars to prevent limestone mining on a small patch of the Florida Everglades.⁷³

One law professor has called the Federal Circuit's opinion in Florida Rock "an extremely destabilizing decision, exposing all wetlands regulation, indeed all environmental and land use regulation, to compensation claims."⁷⁴ After Florida Rock, in the Federal Circuit, every time a regulation decreases the value of property, the government can be sued for monetary damages. If compensation is required for any significant reduction in value, this monetary burden could seriously hamper attempts to regulate against environmental harms.⁷⁵ This appears to be precisely what Judge Jay Plager intended. As Chief Judge Nies noted in dissent, "the objective of the [partial takings] theory is to preclude government regulation precisely because regulation will entail too great a cost."⁷⁶

Endangered Species and Water Rights: Tulare Lake Basin Water Storage District v. United States⁷⁷

More recently, the U.S. Court of Federal Claims handed down an alarming ruling in the Tulare Lake Basin case. The court found a taking where federal protections for endangered salmon and delta smelt resulted in reductions of water available to the claimants under their contracts with the state of California. The reductions ranged from 8 to 22% of the claimants' allocated water, losses that come nowhere close to the near-complete wipeout generally needed to show a regulatory taking under long-standing rulings of the Supreme Court. To sidestep these rulings, the claims court held that the water reductions were not a restriction on use (subject to the near-complete wipeout standard), but instead a "physical seizure" of the water by the federal government that constitutes a per se taking regardless of the amount of water lost. The government argued that there was no seizure because it was not using the water for its own benefit, but the claims court ruled that the mere decrease in available water constitutes a consumptive use to protect the endangered fish. On this theory, the loss of a drop of water due to federal protections would constitute a taking and require compensation.

This ruling effectively requires the federal government to protect endangered fish through purchase. More than one-third of the freshwater species in the United States are either extinct or endangered, largely due to the depletion of natural riverine flows. As the claims court chillingly concluded: "The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so."⁷⁸ This conclusion tolls the death knell for effective federal protections for our nation's freshwater species.

The potential implications for other environmental protections are just as troubling. Under the court's analysis, [32 ELR 10842] virtually any land use restriction could be characterized as a physical seizure. A buffer zone around a stream could be viewed as a physical seizure of the restricted land to protect water quality. A routine setback requirement could be cast as a physical seizure of space to be used as a viewshed, and so on.

Moreover, the Tulare Lake Basin decision effectively overrules decades of California law that limits water rights. Under well-established case law, water in California is not available for appropriation where it would impair instream uses of the water, including fish and wildlife protection. In other words, under state law, the claimants in Tulare Lake Basin lacked any property interest to use the water in a manner that would harm the fish. The claims court refused to recognize these background principles, stating that they involved matters of state law that were beyond its competence to decide. Binding Supreme Court precedent, however, demands consideration of these background principles. The court's disregard of state law bodes ill for all kinds of federal protections that mirror protections under state law.

Wilderness Preservation and the Constitutional Right to Use Fast Motorboats: Stupak-Thrall v. Glickman⁷⁹

Few cases better demonstrate the potential impact of takings activism on the full range of environmental protections than the 1997 ruling in Stupak-Thrall. There, landowners brought a takings challenge to federal rules restricting the use of gas motor boats on portions of Crooked Lake that fall within the boundaries of the federal Sylvania Wilderness, which is on the Michigan/Wisconsin border. These motorboat controls served to promote the goals of the federal Wilderness Act of 1964, which is designed to preserve in their natural condition "area[s] where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain."⁸⁰ The Wilderness Act was established to "secure for the American people of present and future generations the benefits of an enduring resource of wilderness."⁸¹

As noted above, to find a regulatory taking, a court generally must conclude that the challenged regulation denies the landowner all or virtually all economically viable use of the land. The district judge ruled that the motorboat prohibition constitutes a taking even though the challenged prohibition did not even bar all forms of motorboats. In so ruling, the court concluded that it was not bound by earlier rulings by a federal appeals court upholding a ban on sailboats, houseboats, boom boxes, and nonburnable disposable food and beverage containers in the Sylvania Wilderness.⁸² In effect, the court concluded that a taking occurs whenever regulation significantly restrains a landowner from exercising a particular right previously associated with ownership of the property at issue. But virtually all regulation of land restricts a use to which the land may be put. That is the very essence of land use regulation: to control or prohibit uses that harm neighboring property owners or the public. Judge Robert H. Bell effectively looked at each potentially permissible lake use—fishing, wading, bathing, swimming, washing sheep, watering cattle, cutting ice, boating, sailing, etc.—as a discrete, unconditional property "right," instead of looking at the plaintiffs' general right, as a whole, to use Crooked Lake in a reasonable manner. Applied to land use generally, this interpretation of the Takings Clause could require compensation for virtually every regulation that restricts a particular land use.

The Court's 6-3 ruling in Tahoe-Sierra marks a potential sea change in the direction of takings law. After 15 years of writing passionate dissents, Justice Stevens finally assembled a majority for a ruling upholding a government effort to protect the environment from a Takings Clause challenge. He made the most of this opportunity, writing an elegant and far-reaching opinion that undermines the pillars of an expansive reading of the clause.

Most importantly, Justice Stevens emphatically reestablishes the clear divining line between "physical" and "regulatory" takings, a line that had been blurred considerably by the Court's holdings in cases like Lucas. In Justice Stevens' words:

This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking," or vice versa.⁸³

This distinction, according to the Court, is compelled by "the text of the Fifth Amendment itself," which requires compensation for all government acquisitions of private property but "contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property."⁸⁴

As importantly, the Court also appears to have ended a debate, fueled just last term by dicta in the Court's opinion in Palazzolo v. Rhode Island,⁸⁵ about the continuing viability of the so-called parcel as a whole rule. By focusing courts on a landowner's entire parcel, rather than simply the "slice" of property affected by the regulation, the parcel as a whole rule is of paramount importance to environmental protection. Without the rule, innumerable environmental laws that require landowners to protect a portion of their property while utilizing property elsewhere, could require compensation.

The Tahoe-Sierra Court states twice that "in regulatory takings cases we must focus on the 'parcel as a whole,'"⁸⁶ noting that the Court has "consistently rejected" an affected portion standard. In the Court's words:

An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner's interest. Both dimensions must be considered if the interest is to be viewed in its entirety. Hence a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not.⁸⁷

[32 ELR 10843]

The dissents, one by Chief Justice Rehnquist and the second by Justice Clarence Thomas,⁸⁸ disagreed with nearly all of this analysis. Chief Justice Rehnquist advocated a much greater blurring of the line between physical and regulatory takings, stating that a temporary deprivation of use of property during the course of a moratorium was the practical equivalent of the direct expropriation of a leasehold.⁸⁹ Justice Thomas called the parcel as a whole rule "questionable" and opined that "First English put to rest the notion that the 'relevant denominator" is land's infinite duration."

The ruling shows that, given the right facts, the right litigation strategy and some help from the property owners (who swung for the fences in Tahoe-Sierra), environmentalists can win a takings case before the Court. This reaffirms how important it is for environmental organizations to devote time, energy, and resources to litigation strategy in defending against takings challenges.

Tahoe-Sierra also confirms that there are three, if not yet five, Justices willing to support a dramatic expansion of the Takings Clause.⁹⁰ Rulings such as Florida Rock, Tulare Lake, and Stupak-Thrall demonstrate that such an expansion threatens environmental protections across the board. Environmentalists need to be vigilant to ensure that there never comesa time when five Justices share a willingness to adopt extreme views on the Takings Clause.

The Eleventh Amendment: Excusing States From Compliance With Federal Environmental Laws

A constant tension has existed within our nation since its founding between central federal authority and the rights of states. When it comes to protecting the environment, however, sole reliance on state authority has proven a failure. It was the failure of the states to deliver clean air and water to their citizens that led to the passage of federal environmental legislation in the 1970s. While states deserve flexibility in developing the best way to achieve environmental goals, setting the minimum standards that must be achieved is a critical federal responsibility. Everyone is entitled to healthy air to breathe and water to drink, no matter where they live. If states were free to decide what should be the minimum, acceptable level of environmental protection, states could "race to the bottom" by relaxing standards in order to attract business.⁹¹ Federal standards ensure that states do not compete for new business by compromising environmental quality.

Activist interpretations of the Constitution's Eleventh Amendment are undermining these minimum federal protections. The Court, led by Chief Justice Rehnquist, has employed the Eleventh Amendment to elevate states over their own citizens by rendering them immune to requirements of federal law. The Eleventh Amendment's plain language prevents a federal court only from hearing a suit brought against a state by a citizen of another state or another country.⁹² The Court has departed from the narrow text in three significant ways. First, it has ruled that the Eleventh Amendment applies to suits brought by a state's own citizens, effectively extracting the word "another" from the amendment.⁹³ Second, despite the Eleventh Amendment's limitation to the "judicial power," the Court has ruled that Congress is also powerless to subject states to suit in federal court.⁹⁴ Finally, heedless of the amendment's reference only to the "judicial power of the United States," the Court has ruled that Congress cannot require state courts to hear suits challenging a state's compliance with federal law.⁹⁵

These activist rulings have already rendered innumerable victims of illegal state conduct powerless to hold states accountable for violating federal statutory rights created under laws such as the Fair Labor Standards Act⁹⁶ and the Americans With Disabilities Act.⁹⁷ In the environmental arena, the Court has overruled a landmark case, Pennsylvania v. Union Gas Co.,⁹⁸ thus making it impossible for citizens to ensure [32 ELR 10844] that states are held financially responsible for their contributions to hazardous waste sites that must be cleaned up under the Superfund law. As discussed below, lower court rulings suggest that the Court's Eleventh Amendment jurisprudence threatens to upset the entire federal/state partnership that characterizes modern environmental law.

In Bragg v. West Virginia Coal Ass'n,⁹⁹ homeowners along with an environmental group in West Virginia sued state surface mining officials for routinely permitting one of the most environmentally devastating practices in existence today: mountaintop removal coal mining. Just as the name suggests, under this practice, the tops of mountains are literally blown up and removed and thousands of tons of rock and debris are dumped in adjacent valleys. These "valley fills" level forests, bury streams, and pollute the rivers fed by these streams. Mountaintop removal coal companies make bad neighbors: their activity causes flooding, fires, dust, noise, and vibrations severe enough to crack the foundations of nearby houses.

It is hard to imagine how such a practice could be permitted under the federal Surface Mining Control and Reclamation Act (SMCRA), which states as its first purpose to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations."¹⁰⁰ In particular, the Office of Surface Mining (OSM) has issued regulations under SMCRA stating that "no land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining." Avoiding this prohibition requires a showing that the mining "will not adversely affect the water quantity and quality or other environmental resources of the stream."¹⁰¹

Nonetheless, for years, West Virginia surface mining officials have routinely and expeditiously granted permits to coal companies allowing removal of mountaintops and the dumping of waste into nearby streams—a clear violation of the prohibition against adversely affecting streams. Employing SMCRA's citizen suit provision, which authorizes suits against states to compel compliance with the "provisions of [SMCRA] or of any rule, regulation, order, or permit issued pursuant thereto,"¹⁰² Bragg sued these state officials in federal court demanding that they comply with SMCRA's minimum environmental protections. He received a favorable ruling from the district court.¹⁰³ The court ruled that mountaintop removal mining was impossible to reconcile with SMCRA. In the court's words:

When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments. The normal flow and gradient of the stream is now buried under millions of cubic yards of excess spoil waste material, an extremely adverse effect. If there are fish, they cannot migrate. If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream there is no water quality. The Director lawfully cannot make required findings for buffer zone variances for valley fills.¹⁰⁴

In late April 2001, however, a three-judge panel of the Fourth Circuit reversed the district court and ruled that the Eleventh Amendment barred Bragg's claim. Even given the Supreme Court's recent activism in this area, the court's opinion is remarkable. An unbroken line of rulings, beginning with the 1908 case of Ex Parte Young,¹⁰⁵ permits suits seeking injunctions to bar state officials from violating federal law even in cases in which the Eleventh Amendment would bar suits for money damages directly against the states The Fourth Circuit bypassed Young by declaring that in states that have an approved program to administer SMCRA, the federal minimum standards "drop out" and a claimant's only cause of action is under state law.

To so rule, the court had to ignore both the plain language of SMCRA, which makes clear that federal minimum standards never "drop out,"¹⁰⁶ and binding precedent which held that state permits and rules are "issued pursuant to SMCRA."¹⁰⁷ In doing so, the court not only freed West Virginia officials to continue permitting removal of mountaintops and the destruction of hundreds of miles of streams, but also broke Congress' core promise to the American people in passing SMCRA: the assurance that compliance with minimum federal environmental protections would not be left up to state officials.¹⁰⁸

Congress passed comprehensive federal environmental protections over the last three decades because state efforts had fallen short. In SMCRA and other federal statutes, Congress crafted a careful balance, allowing states the opportunity to operate the federal program in their states but simultaneously establishing what the Court has termed a "maximum enforcement regime"¹⁰⁹ to guarantee that minimum federal mandates are met throughout the country. Activist rulings like Bragg throw Congress' careful balance out the [32 ELR 10845] window and threaten a return to the days when health and safety is undermined by a regulatory race to the bottom.

Eliminating Environmental Access to Justice

A powerful innovation of modern environmental law is the authority Congress granted to citizens to ensure that these laws are carried out by regulatory agencies and obeyed by polluters. Concerned that agencies would be "captured" by regulated industries, Congress authorized suits against the government to force compliance with congressional mandates. Anticipating that enforcement budgets could be slashed, Congress enacted citizen suit provisions deputizing citizens to act as "private attorneys general" to force polluters to comply with federal mandates.

Despite Congress' explicit mandates, the federal judiciary has, with limited exception, closed its doors to environmental plaintiffs.

Cutting Back on Private Causes of Action

Alexander v. Sandoval¹¹⁰

In the 1960s, the Court, convinced that the there must be a judicial remedy for most clear violations of a legal rights, established implied causes of action to permit private enforcement of civil rights and other critical rights-creating statutes.¹¹¹ Congress, following the Court's lead, has reaffirmed and expanded many of these private causes. In the past two decades, the Rehnquist Court has been activist in the opposite direction, aggressively limiting even those private causes of action expressly approved by Congress.¹¹²

There is no better illustration than Sandoval, an April 2001 ruling by the Court finding that there is no private cause of action to enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act—regulations that form the primary source of rights to ensure environmental justice.¹¹³

Sandoval involved the Alabama Department of Public Safety's decision to administer all tests for driver's licenses in English. Ms. Sandoval, on behalf of a class of non-English speakers, challenged this "English-only" restriction, alleging that it violated U.S. Department of Justice regulations forbidding recipients of federal funding to "utilize criteria or methods of administration which have the effect of subjecting individual to discrimination because of their race, color or national origin. . . ."¹¹⁴

By a 5-4 vote, the Court, through Justice Scalia, ruled that the well-established private cause of action to enforce § 601 of the Civil Rights Act¹¹⁵ did not extend to disparate impact regulations promulgated under § 602 of Title VI.¹¹⁶ Considering the two sections of Title VI independently, the Court held that the rights-creating language in § 601 "is completely absent from § 602."¹¹⁷ Further, the Court drew a wedge between § 601, which has been held to only proscribe intentional discrimination,¹¹⁸ and disparate impact claims under regulations promulgated under § 602. The Court ruled that a private cause of action for a statutory provision only encompasses regulations promulgated under that provision where the regulation does nothing more than "authoritatively construe the statute itself."¹¹⁹

The Sandoval decision effectively overruled a line of earlier rulings that had, at the very least, presumed that § 602 regulations could be privately enforced. Interpreting these rulings, 10 federal circuit courts had addressed the question of whether there was a private cause of action to enforce regulations validly promulgated under Title VI—and every one of these courts had concluded that such a right existed. As Justice Stevens notes in dissent: "This Court has already considered the question presented today and concluded that a private right of action exists."¹²⁰ Stare decisis alone demanded that Sandoval be able to maintain her claim.

The wedge the Sandoval majority draws between §§ 601 and 602 of Title VI also appears nonsensical. As the dissent again notes, the provisions together form an integrated remedial scheme to attack the intractable problem of racial [32 ELR 10846] discrimination.¹²¹ Section 601 establishes an antidiscrimination mandate, while § 602 gives government agencies authority to implement prophylactic rules aimed at transforming this mandate into reality. There is no support in Title VI for the "majority's persistent belief that the two sections somehow forward different agendas."¹²²

Justice Stevens ends his Sandoval dissent with a stinging critique of the activism of the majority in denying the litigant a day in court:

The question the Court answers today was only an open question in the most technical sense. Given the prevailing consensus in the Courts of Appeals, the Court should have declined to take this case. Having granted certiorari, the Court should have answered the question differently by simply according respect to our prior decisions. But most importantly, even if it were to ignore all of our post-1964 writing, the Court should have answered the question differently on the merits.¹²³

South Camden Citizens in Action v. New Jersey Department of Environmental Protection¹²⁴

The question in Sandoval was open in a "technical sense" because while five members of the Court in Guardians Ass'n v. Civil Service Commission of New York City¹²⁵ agreed that private parties could enforce § 602 regulations, these Justices did not each state specifically that the private cause of action stemmed from Title VI itself.¹²⁶ In particular, Justice Stevens, joined by Justice William J. Brennan and Justice Blackmun, opined that it was not necessary to decide whether there a cause of action exists directly under Title VI because it was clear that private parties could sue to enforce § 602 regulations under 28 U.S.C § 1983.¹²⁷

Justice Stevens thus raised the question, never replied to, of whether Sandoval was simply "something of a sport" and suggested that "litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must rely on reference § 1983 to obtain this relief."¹²⁸

In a critical environmental justice challenge decided less than a year after Sandoval, the U.S. Court of Appeals for the Third Circuit did its best to end the sport before the game really got started.¹²⁹ Despite Justice Scalia's warning in Sandoval that courts are "bound by holdings, not language," a split panel of the circuit declared that the "teachings of Sandoval" effectively overruled the precise holding of the Third Circuit in Powell v. Ridge,¹³⁰ which held that § 602 regulations could be enforced under 28 U.S.C. § 1983.¹³¹

To reach this conclusion, and to reverse a comprehensive and well-reasoned opinion by the district court,¹³² the majority had to interpret the holding of Powell as dicta which "could not control the outcome here."¹³³ But, as the dissent points out, the assertion that Powell's holding on the availability of a § 1983 remedy was dicta "can not [sic] withstand even a cursory reading of [the decision]."¹³⁴

Combined, Sandoval and South Camden eliminate the single most important legal avenue available to the environmental justice movement. More broadly, the decisions illustrate perfectly the activism of the Rehnquist Court and certain lower federal court judges in eliminating access individual claimants seeking justice in environmental and other cases through the court system.

Environmental Standing

In areas of environmental law where Congress has plainly established a private cause of action, the Supreme Court and lower federal courts have aggressively denied access to environmental plaintiff's by strictly limiting the "standing" of these plaintiffs to bring suit.

Developments in standing law during most of the 1990s hewed remarkably closely to a plan sketched out in a 1983 law journal article written by then-Judge Scalia.¹³⁵ The Court ruled in a series of cases that environmental plaintiffs are not sufficiently injured by environmental harms to have "standing" in court.¹³⁶ Ignoring history and without sufficient [32 ELR 10847] support in the text of the Constitution, the Court declared that Congress is limited in its ability to create legal rights that are enforceable in court.¹³⁷ Thus, even if Congress believes that environmental groups and citizens are sufficiently harmed by environmental pollution to have a case, judges can trump that determination. Justice Scalia has also insisted that it should be easier for an "object" of regulation, e.g., a corporate polluter, to establish standing to sue than a beneficiary, e.g., a citizen trying to stop pollution.¹³⁸ Finally, the Court, through Justice Scalia, has suggested that most forms of judicial relief authorized by Congress under citizen suit provisions do not actually "redress" the harms suffered by environmental plaintiffs, and again he has kicked environmental plaintiffs out of court on this basis.¹³⁹

Dismissal of a citizen's suit for lack of standing, of course, has nothing to do with the question of whether or not the defendant is violating the law. When a court avoids the merits and throws a plaintiff out of the courthouse on standing grounds, polluters are allowed to continue polluting, and agencies can shirk their regulatory responsibilities, without the accountability that Congress mandated.

Justice Scalia's opinion in Lujan v. Defenders of Wildlife¹⁴⁰ is aptly described in Justice Blackmun's dissent as a "slash-and-burn expedition through the law of environmental standing."¹⁴¹ The Court rejected the environmentalists' right to sue in order to ensure that federal agencies complied with endangered species protections when funding international projects. The Endangered Species Act (ESA) requires that other federal agencies consult with the U.S. Department of the Interior (DOI) prior to authorizing or funding an operation that is likely to harm an endangered species. In Lujan, members of Defenders of Wildlife sued to prevent the DOI from abandoning this consultation role in U.S.-funded projects oversees. These plaintiffs had visited several ongoing, U.S.-funded projects in foreign countries, and they stated a desire and intention to return to these sites and view and study the resident endangered species. They feared that, absent consultation, the development projects would destroy critical habitat for endangered species in the areas and lead to the extinction of these species.

Justice Scalia casually discarded the plaintiffs' claims of injury. Past visits to the area, he declared, "proved nothing," and "some day" intentions to return do not suffice to create a genuine interest. Justice Scalia also cavalierly dismissed several other claims of injury advanced by Defenders of Wildlife. For example, he called it "beyond all reason" and "pure speculation and fantasy" to suggest that a wildlife biologist that works with a particular species in one part of the world might be "appreciably harmed" when a project in another part of the world kills a member of that species.¹⁴² Justice Stevens was also taken to task for having the temerity to suggest that, to committed environmentalists, harming a species is somewhat akin to harming a distant relative.¹⁴³ Justice Scalia could not fathom why "an interest in animals should be different from such an interest in anything else that is subject of a lawsuit."¹⁴⁴

Lujan's collateral damage, at least until recently, threatened to extend far beyond its holding. Two particular passages of the ruling bear special emphasis. First, the Lujan Court expressly distinguished between objects of government regulation and beneficiaries of government regulation. In the Court's words:

Standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. When the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily "substantially more difficult" to establish.¹⁴⁵

This passage potentially slammed the courthouse doors in the face of numerous environmental plaintiffs while keeping them wide open for corporate polluters. Its message is explicit and extraordinary: while harms to the corporate bottom line are always cognizable, the injuries suffered by environmentalists at the hands of polluters rarely warrant the attention of our federal courts. The bitter irony of this opinion was hammered home five years later in Bennett v. Spear,¹⁴⁶ in which Justice Scalia ignored innumerable obstacles to grant standing to industry groups that were challenging a decision to list a species under the ESA.

Just as disturbing is the Lujan Court's naked grab of power from Congress and the electorate. For the first time in history, the Lujan Court ruled that courts can second-guess congressional decisions designating individuals or groups as sufficiently harmed to warrant judicial intervention. Again, Justice Scalia distinguished cases based on the type of interest advanced by the claimant. Congress cannot, according to the Justice, grant individuals the right to "vindicate the public interest (including the public interest in Government observance of the Constitution and laws)."¹⁴⁷ Because almost every environmental statute includes broad citizen suit provisions authorizing intervention on behalf of the public interest, one scholar called Lujan [32 ELR 10848] "among the most important [rulings] in history in terms of the sheer number of federal statutes that it has apparently invalidated."¹⁴⁸

Environmental standing took another large hit in Justice Scalia's 1998 opinion for the Court in Steel Co. v. Citizens for a Better Environment.¹⁴⁹ The issue in Steel Co. was "redressability," a relatively new addition to the Court's standing law.¹⁵⁰ Even if an environmental plaintiff has been sufficiently injured to have standing under Lujan, they will be tossed out of court if the damages they seek do not "redress" their injuries. In Steel Co., the Court ruled that damages paid to the U.S. Treasury do not redress past violations of environmental laws. The case involved the toxic chemical reporting requirements established under the Emergency Planning and Community Right-To-Know Act (EPCRA).¹⁵¹ Steel Company was subject to EPCRA's reporting requirements and failed, for seven straight years, to meet this requirement. It complied with the law only after Citizens for a Better Environment (CBE), a local environmental group, sent it a notice indicating its intent to sue to enforce compliance pursuant to EPCRA's citizen suit provision. CBE then sued, seeking penalties and an injunction preventing future violations.

Justice Scalia declared that the remedies CBE sought would not redress any harm they suffered from Steel Co.'s past violations. In rejecting CBE's claim for money damages, Justice Scalia belittled and undermined the entire premise of public interest environmental litigation. In his words: "Although a suitor may derive great comfort and joy from the fact that the [U.S.] Treasury is not cheated, that a wrongdoer gets his just desserts, or that the Nation's laws are faithfully enforced, that psychic satisfaction is not an acceptable Article III remedy."¹⁵² To reject CBE's claim for injunctive relief, the Court discarded a well-established "presumption of [future] injury when the defendant has voluntarily ceased its illegal activity in response to litigation."¹⁵³

Combined, Steel Co. and Lujan threatened to render environmental plaintiffs second-class litigants and establish standing as a major impediment to environmental compliance litigation. But Justice Scalia's ability to command a majority for his antienvironmental activism in the area of standing ended in the January 2000 case, Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc.¹⁵⁴ Laidlaw was similar in many ways to Steel Co. It involved the issue of redressability and, as in Steel Co., Friends of the Earth was seeking civil penalties that would be paid to the federal government. The stakes were much higher in Laidlaw, though, because Laidlaw continued to violate the terms of its CWA permit long after litigation began. If civil penalties were ruled not to redress Friends of the Earth's injuries, then environmental plaintiffs could never prevail in a citizen suit seeking such a remedy.

The majority, over a vehement dissent by Justice Scalia, held that Steel Co. was limited to cases in which there was no basis for an allegation that the company would violate the statute in the future. Where future violations are possible, civil penalties redress past harms. In the Court's words: "It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress."¹⁵⁵

Justice Scalia disagreed. In a dissent joined by Justice Thomas, he argued that "it is my view that a plaintiff's desire to benefit from the deterrent effect of a public penalty for past conduct can never suffice to establish a case or controversy of the sort known to our law. Such deterrent effect is, so to speak, 'speculative as a matter of law.'"¹⁵⁶ Justice Scalia would, in other words, dramatically curtail every one of the numerous citizen suit provisions that permit a claimant to seek civil penalties.

Like a true activist, Justice Scalia seems unlikely to take the 7-2 ruling of the Court in Laidlaw as a final answer. Instead, he suggests a roadmap for corporations to relitigate the same question under a different constitutional vehicle.¹⁵⁷

Prof. Richard Pierce has studied standing cases decided by the Supreme Court and federal courts of appeals.¹⁵⁸ He put his conclusion starkly: "Judges provide access to the courts to individuals who seek to further the political and ideological agendas of judges."¹⁵⁹ There is no plainer example of this phenomenon than Justice Scalia's opinions in the area of environmental standing. Justice Scalia quite clearly does not like environmental litigants.¹⁶⁰ His ideological views are leading him to write opinions in the area of environmental standing that are not consistent with his own views on standing in other areas¹⁶¹ and that have no basis in the text or the original meaning of the Constitution. Despite the favorable ruling in Laidlaw, the threat to environmental standing has not passed. Justice Scalia has made it quite clear that he will continue to press for a dramatic curtailment of citizen access to federal court. Again, this demands vigilance by environmentalists in developing and implementing an effective litigation strategy and in monitoring judicial appointments.

The D.C. Circuit's Attack on Environmental Protections

The U.S. Court of Appeals for the District of Columbia Circuit is empowered to hear most cases challenging regulatory decisions made by the U.S. Environmental Protection [32 ELR 10849] Agency (EPA), the DOI, and other executive branch agencies. This unique jurisdiction makes the court the second (to the Supreme Court) most prestigious and powerful court in the nation. The court is a breeding ground for Court appointees¹⁶² and a battleground for judicial appointments.

Presidents Reagan and George H.W. Bush appointed notable antienvironmental activists such as Stephen Williams, Douglas Ginsburg, and David Sentelle to this court, and as a result, in the last decade, the D.C. Circuit has dramatically curtailed the ability of the EPA and other federal agencies to enact regulations that advance environmental goals.¹⁶³

The most dramatic example of hostility to environmental protections is the D.C. Circuit's May 1999 opinion in American Trucking Ass'n v. EPA,¹⁶⁴ delaying implementation of EPA's proposed health standards for smog and soot (or to use the technical terms, the national ambient air quality standards (NAAQS) for low-level ozone (smog) and particulate matter (soot)). The Clinton Administration hailed these regulations as "the most significant steps we've taken in a generation to protect the American people, especially our children, from air pollution."¹⁶⁵ EPA estimates that, each year, the standards will prevent an estimated 15,000 premature deaths, 350,000 cases of aggravated asthma, and nearly a million cases of significantly decreased lung function in children.¹⁶⁶ In striking down these regulations, Judges Ginsburg and Williams dusted off what is known as the "nondelegation doctrine" to rule that a central provision of the Clean Air Act (CAA), as interpreted by EPA, represented an unacceptable transfer of power by Congress to EPA.¹⁶⁷ The court remanded the standards to EPA with the instruction that the Agency articulate a "determinate criterion for drawing lines."¹⁶⁸

Judge David S. Tatel's dissent pointed out the most glaring problem with this ruling: it "ignores the last half-century of Supreme Court nondelegation jurisprudence."¹⁶⁹ As chronicled by Judge Tatel, the Court had repeatedly approved transfers of authority that are far less restricted than the delegation under the CAA.¹⁷⁰ The D.C. Circuit had, itself, also reviewed and upheld the precise section of the CAA in question in 10 prior opinions without once suggesting that Congress had transferred inordinate authority to EPA.¹⁷¹ The ruling was thus, in former EPA Administrator Carol Browner's words, both "bizarre and extreme."¹⁷² The decision also called into question many of this nation's health, safety, and welfare statutes. As Cass Sunstein put it, the holding represented "a remarkable departure from precedent" that "if taken seriously, bring[s] much of the activity of the federal government into question."¹⁷³ The Supreme Court echoed the conclusions of Tatel, Browner, and Sunstein when it unanimously reversed the D.C. Circuit's ruling.¹⁷⁴ The Court declared that "the scope of discretion § 109(b)(1) allows is in fact well within the outer limits of the Court's nondelegation precedents."¹⁷⁵ In the words of former Solicitor General Seth Waxman, who argued the case for the United States: "I can't imagine a more thoroughgoing rebuke of the D.C. Circuit's little escapade."¹⁷⁶

Another important example of the D.C. Circuit's hostility to environmental safeguards is its ruling in Sweet Home Chapter of Communities for a Greater Oregon v. Babbitt.¹⁷⁷ There, the court struck down DOI regulations prohibiting severe habitat modifications that would kill an endangered or threatened species. The ruling gutted a central provision of the ESA for the 15 months it was in effect. Under what is known as the Chevron doctrine (named after the Supreme Court's opinion in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.),¹⁷⁸ courts are supposed to engage in a two-step inquiry when reviewing an agency interpretation of the laws it administers. First the court determines whether Congress has unambiguously resolved the issue. If not, then under Chevron's second step, a court is to defer to any "permissible construction of the statute" reached by the agency.¹⁷⁹

Sweet Home should have been an easy victory for the government under Chevron. The ESA makes it unlawful to "take" an endangered species. Take is defined under the Act, meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect."¹⁸⁰ The DOI interpreted the term "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife."¹⁸¹ Because the statute does not define harm and nowhere prohibits the application of that term to habitat modifications, Sweet Home was a classic "step two" Chevron case. Under step two, the DOI's interpretation was entitled to deference and the court's only role was to determine whether the interpretation was permissible.

Judges Williams and Sentelle jettisoned the Chevron standard in order to strike down the protections. Relying almost entirely on an obscure doctrine of statutory interpretation [32 ELR 10850] called noscitur a sociis ("a word is known for the company it keeps"),¹⁸² the court defined harm not by its ordinary meaning (which would include habitat destruction that harms a species), but by reference to the words next to it, which all, according to the court, suggested animus directed toward the species.¹⁸³ Reading the statute through this rarely used lens, the court ruled that the DOI's interpretation of the term "harm" was unreasonable.¹⁸⁴

As Judge Mikva pointed out in dissent, that is not the way Chevron works. In Judge Mikva's words:

The whole point of Chevron deference is that when Congress has not given a clear command, we presume that it has accorded discretion to the agency to clarify any ambiguities in the statute it administers. In requiring the agency to justify its regulation by reference to such a clear command, the majority confounds its role. Ties are supposed to go to the dealer under Chevron.¹⁸⁵

The Supreme Court reversed 15 months later in a 6-3 ruling.¹⁸⁶ The Court chronicled three clear errors in the D.C. Circuit's logic and upheld the DOI's interpretation of the Act under a straightforward Chevron analysis.¹⁸⁷

Sweet Home and American Trucking are not isolated examples. During the 1990s, the D.C. Circuit struck down or hindered a long list of critical environmental protections ranging from wetland protections,¹⁸⁸ to corporate average fuel economy (CAFE) standards,¹⁸⁹ to Superfund site designations,¹⁹⁰ to guidelines on treatment of petroleum wastewater.¹⁹¹ The court has also imposed barriers to environmental standing that exceed the hurdles imposed by the Supreme Court.¹⁹²

Empirical research confirms that judges on the D.C. Circuit are letting their ideology dictate their judicial decision-making. For example, Profs. Christopher Schroeder and Robert Glicksman, writing in the Environmental Law Reporter, recently conducted a comprehensive study of environmental rulings by federal courts of appeals. They found that pro-industry claimants had experienced a fivefold increase in their success in challenging EPA's scientific decisionmaking during the 1990s.¹⁹³ Environmental claimants over the same period saw their success rate decrease by 20%.¹⁹⁴ Professors Schroeder and Glicksman also note that the D.C. Circuit's rulings exhibit a double standard that favors industry claimants.¹⁹⁵ For example, they note that the circuit has struck down several important environmental rules employing the presumption that where Congress lists factors to be considered, that list is exclusive of other nonlisted factors.¹⁹⁶ Where the nonlisted factor is compliance costs to industry, however, the court has reversed this presumption, instead requiring "clear congressional intent to preclude consideration of cost."¹⁹⁷

Other studies have documented the extent to which ideology drives judicial behavior in the D.C. Circuit. Looking at D.C. Circuit standing decisions, Professor Pierce found that "Republican judges voted to deny standing to environmental plaintiffs in 79.2% of the cases, while Democratic judges voted to deny standing to environmental plaintiffs in only 18.2% of cases."¹⁹⁸ Prof. Richard Revesz examined 250 [32 ELR 10851] D.C. Circuit opinions decided between 1970 and 1994 and concluded that judges on the court employ a "strategically ideological approach to judging."¹⁹⁹ For example, Professor Revesz found that from 1987 to 1994, panels consisting of two Democrats and one Republican reversed EPA on procedural grounds raised by industry in between two and 13% of cases. Over the same period, panels consisting of two Republicans and one Democrat reversed EPA in 54 to 89% of these cases. In Professor Revesz's words, "the magnitude of these differences is staggering."²⁰⁰

The difference party affiliation and ideology have made in terms of results on the D.C. Circuit should be chilling to anyone who cares about public health and the environment. While two of the most damaging recent decisions were reversed by the Supreme Court, most D.C. Circuit opinions are left unreviewed. The Supreme Court reviews less than 1% of the numerous cases in which review is sought. Furthermore, the D.C. Circuit's approach to the numerous cases in which it reviews the legality or reasonableness of an agency action significantly affects whether the environmental mandates enacted by Congress are fulfilled, even when no constitutional claim is at issue. The public loses when the D.C. Circuit engages in a more searching review of agency decisions to enhance (or maintain) public health and environmental protections, than of decisions to cut back on or carve out exemptions form such protections.²⁰¹ Thus, even without advancing novel constitutional theories, the D.C. Circuit can have tremendous impact on the level of environmental protection the public receives.

The American Trucking and Sweet Home decisions illustrate the climate of antienvironmental activism festering on the federal bench. Lower federal courts are not supposed to go on "escapades" that fly in the face of binding Supreme Court precedent, particularly in cases where thousands of lives are at stake. Nor are they supposed to dust off obscure doctrines of statutory construction to overturn congressional intent and reasonable agency interpretations. But the Court's own activism in Commerce Clause, takings, and standing law has emboldened lower court judges with pet theories. These judges feel empowered to use cases before them as vehicles to serve up to the Court new methods to advance antienvironmental activism. Neither Congress nor the agencies nor the public can count on a predictable legal framework in which to establish vital protections for public health and our natural resources.

Overt Hostility to Environmental Protections

As shown above, activist federal judges are developing a wide assortment of questionable legal theories in an attempt to justify the results they want at the expense of environmental protection. These judges feel unconstrained by well-established legal principles or unambiguous statutory text enacted by Congress. Rather than honoring the will of the people as reflected by Congress, they are promoting their own policy preferences. Sometimes, evidence of this phenomenon is difficult to uncover because judges try to cloak their ideology in reasonable, objective language. On several occasions, however, a judge's true colors have shone through in rather extreme, antienvironmental rhetoric. Unfortunately, in all too many courts, instead of a fair and impartial forum, environmental advocates are finding a hostile environment.

At times, a judge's rhetoric reveals a clear bias against public officials charged with implementing environmental protections. Rather than viewing employees of agencies such as EPA as public servants promoting the public good, some judges see them as unwarranted obstacles to the free market and an excessive burden on industry. In Nollan, for example, Justice Scalia accused state coastal protection officials of engaging in "an out-and-out plan of extortion" when they sought to ensure the public's access to public beaches when permitting more intense development on coastal property.²⁰² Although reasonable minds might differ as to whether the access requirement passed constitutional muster, no reasonable person could review the legitimate concerns raised by intense coastal development and conclude that coastal protection officials were engaged in out-right extortion. Another judge referred to agency scientists as "pointy heads" and "so-called experts" who write "trashy regulations" that "don't make any sense."²⁰³ This undisguised scorn for public officials who administer environmental protections provides little assurance that those who pollute our environment and threaten our health will be held responsible.

Some federal judges simply do not share, or even respect, the values that underlie some of the laws that protect America's treasured environmental resources. The ESA has, as noted above, come under particular fire. Endangered species provide many benefits, including serving as a source of life-saving medicines. Fifty percent of the most frequently prescribed medicines come from wild plant and animals. The most important medicines often are discovered from seemingly unimportant species. For example, the Pacific yew tree, long regarded as a weed species, has been found to contain taxol, an important drug used to treat cancer. Vampire bat saliva is helping to open clogged arteries and prevent heart attacks. Pit viper venom led to the discovery of drugs that regulate human blood pressure. This pharmacological benefit is one of the reasons why Congress enacted the ESA. In his dissent in National Ass'n of Home Builders v. Babbitt,²⁰⁴ however, Judge Sentelle belittles the value of preserving endangered species for future medical benefits. He finds it absurd to justify the ESA based on an "undetermined" possibility that a species "might produce something at some undefined and undetermined future time which might have some undefined and undeterminable medical value."²⁰⁵ He unjustifiably disregards Congress' decision to protect all endangered species so that their medicinal potential remains available to us despite current ignorance regarding these uses.

When Judge Sentelle looks at the ESA, he sees it as an unwarranted obstacle to development. For example, in Home [32 ELR 10852] Builders, he disparaged the ESA for "preventing counties and their citizens from building hospitals or from driving to those hospitals by routes in which the bugs smashed upon their windshields might turn out to include the Delhi Sands Flower-Loving Fly."²⁰⁶ He not only used graphic pejoratives (bugs smashed upon their windshields) to describe the species at issue, but also ignored the fact that the protections in question did not prevent the construction of any hospital.

One judge's hostility to environmental protection ran so deep that he prohibited the celebration of Earth Day activities at a New York high school. Each year, this school observes Earth Day with activities centered on environmental conservation. The activities include drum playing and other musical performances, and focus on rainforest preservation, endangered species, and other environmental issues. In 1999, in Altman v. Bedford Central School District,²⁰⁷ a federal district judge enjoined these Earth Day celebrations as a violation of the Free Exercise and Establishment Clauses of the First Amendment, stating that "the worship of the Earth is a recognized religion (Gaia)," that "the liturgy" of Earth Day at Fox Lane High School was "truly bizarre" and "takes on much of the attributes of the ceremonies of worship by organized religions."²⁰⁸ A federal court of appeals unanimously reversed, ruling that the Earth Day activities had a secular purpose, were not coercive, and did not have the effect of endorsing the Gaia religion.²⁰⁹ The court emphasized that no objective observer would view the Earth Day celebration as endorsing Gaia and that the evidence did not support the trial court's conclusion that the celebration treated the earth as though it were divine or to be worshiped.

Other judges are unwilling to adhere to Congress' recognition that environmental crimes are real crimes with real victims that deserve appropriate punishment. For instance, in United States v. Rapanos,²¹⁰ Rapanos entered an option agreement with a developer to build a shopping mall. After the landowner's consultant informed him that he needed a state permit to fill 50 acres of wetlands on the property, Rapanos became enraged, stated that "he'd destroy all those (expletive deleted) wetlands," fired the consultant, and ordered him to destroy his reports.²¹¹ The developer then ignored two cease-and-desist orders from state officials and repeatedly destroyed wetlands on the property without the required permit. After a jury found him guilty of violating the CWA, the trial judge ignored the applicable sentencing guidelines, evidently because he shared the convicted criminal's disdain for wetlands protections. The judge stated that the sentence for Rapanos' crimes required by the federal sentencing guidelines showed that "our [legal] system [has] gone crazy," and he refused to impose the proper sentence. The Sixth Circuit unanimously reversed, concluding that "[a] fundamental disagreement with the law" is not a "permissible factor[] to consider in granting downward departures not provided forby the guidelines."²¹²

The public deserves judges who respect the values embodied in our landmark environmental laws and the role of federal regulators. Despite the tireless effort by countless citizens over the past 30 years to put an effective system of environmental protections in place, this system is at risk from judges who place their personal preferences and biases above plain statutory mandates and well-established legal principles. Our health, our quality of life, and our children's future cannot afford more antienvironmental activist judges.

Conclusion

Patricia M. Wald, a former judge on the federal appeals court for the D.C. Circuit, once observed: "The law of the environment, like the environment itself, is a seamless web: pluck at any one point in the intricate fabric of our ecosystem and the web of relationships changes shape, disrupting the previous equilibrium . . . ."²¹³ Antienvironmental activist judges are not just plucking at the fabric of environmental law; they are tearing it apart through a radical reworking of the Constitution and the constitutionally mandated role of judges in our democracy.

This judicial activism is not only deeply disturbing, but also very much out of keeping with the historic role of the courts. Federal courts have been instrumental to the success of the environmental movement. They have traditionally sustained the policy choices made by the public and the Congress to protect the environment. They generally have respected the Constitution and long-standing precedent in upholding environmental protections against industry-launched attacks. They have ensured adequate access to the courts by citizens harmed by violations of environmental laws. As a result, our air, lakes, rivers, and other natural resources are far better off than they were in decades past. The antienvironmental judicial activism that has emerged in recent years threatens all we have gained.

President Bush must live up to his commitment to the American people to nominate judges who will not legislate from the bench, but instead will respect the policy decisions made by our elected representatives to protect public health and our natural resources as reflected in our environmental laws. The Senate must exercise its advise-and-consent responsibilities to ensure that judicial nominees affirmatively reject antienvironmental activism. Only then will the intricate fabric of our environmental laws remain untarnished by judicial hostility to these fundamental protections.

1. U.S. CONST. amend. V.

2. U.S. CONST. art. I, § 8, cl. 3.

3. No. 00-1167, 2002 WL 1468 (U.S. Apr. 24, 2002).

4. See Institute for Justice website, at http://www.instituteforjustice.org (staff biographies) (last visited May 15, 2002).

5. James L. Huffman, The Heritage Foundation Lectures and Education Programs: A Case for Principled Judicial Activism, available at http://www.heritage.org/library/categories/crimelaw/lect456.html (last visited Apr. 30, 2001).

6. RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN x (1985).

7. Id. at 30-31.

8. See, e.g., Douglas T. Kendall & Charles P. Lord, The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. ENVTL. AFF. L. REV. 509 (1998).

9. CHARLES FRIED, ORDER AND LIBERTY: ARGUING THE REAGAN REVOLUTION — A FIRSTHAND ACCOUNT 183 (1991).

10. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 230 (1990).

11. Gibbs v. Babbitt, 214 F.3d 483, 504-05, 30 ELR 20602, 20610 (4th Cir. 2000).

12. Id.

13. Federal Deposit Ins. Corp. v. Hamilton, 122 F.3d 854, 866 n.3 (10th Cir. 1997) (Baldock, J., dissenting). To be clear, we are not holding out any particular judge as a model of judicial restraint. Still, the fire antienvironmental activism has drawn from conservatives is very telling evidence of how far certain conservative judges have drifted from the altar of judicial restraint.

14. See, e.g., Wickard v. Filburn, 317 U.S. 111, 125 (1942) (intrastate activity "may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce . . . ."); United States v. Darby, 312 U.S. 100, 118 (1941) (rejecting a Commerce Clause challenge to the Fair Labor Standards Act because Congress's Commerce Clause power "extends to those activities intrastate which so affect interstate commerce . . . as to make regulation of them appropriate means to the attainment of a legitimate end . . . .").

15. 514 U.S. 549 (1995).

16. 529 U.S. 598 (2000).

17. Id. at 610 (asserting that the noneconomic nature of the handgun possession at issue in Lopez was central to the Lopez ruling); id. at 613 (emphasizing that "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity").

18. 927 F. Supp. 1502, 26 ELR 21303 (S.D. Ala. 1996).

19. Other examples include United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997) (overturning conviction of developer for knowingly filling and excavating wetlands without a permit) and Rice v. Harken Exploration Co., 250 F.3d 264, 31 ELR 20599 (5th Cir. 2001) (landowners could not recover for discharges of oil contaminating groundwater on their property).

20. See Olin, 927 F. Supp. at 1504, 26 ELR at 21303.

21. Id. at 1532-33, 26 ELR at 21316.

22. Id. at 1533, 26 ELR at 21316.

23. United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997).

24. See id. at 1511, 27 ELR at 20780.

25. Id.

26. See Nova Chems., Inc. v. GAF Corp., 945 F. Supp. 1098, 27 ELR 20530 (E.D. Tenn. 1996); United States v. NL Indus., Inc., 936 F. Supp. 545, 27 ELR 20130 (S.D. Ill. 1996).

27. See Nova Chems., 945 F. Supp. at 1106, 27 ELR at 20535 ("The release of hazardous wastes and the remediation of hazardous waste sites are clearly economic activities.").

28. 121 S. Ct. 675, 31 ELR 20382 (2001).

29. The five Justices in the majority in SWANCC (William J. Rehnquist, O'Connor, Antonin Scalia, Kennedy, and Clarence Thomas) are the same who struck down the federal handgun possession law in Lopez and who have since constituted the majority in other activist rulings invalidating portions of our federal civil rights laws.

30. Missouri v. Holland, 252 U.S. 416, 435 (1920).

31. Id.

32. The Rehnquist Court has repeatedly heldthat trash is an object of commerce, see C&A Carbone v. Town of Clarkson, N.Y., 511 U.S. 383, 24 ELR 20815 (1994) and has repeatedly struck down local efforts to regulate the flow of trash. Id.

33. SWANCC, 121 S. Ct. at 694, 31 ELR at 20389 (Stevens, J., dissenting).

34. Id. at 683.

35. See Missouri, 252 U.S. at 431.

36. SWANCC, 121 S. Ct. at 693, 31 ELR at 20389.

37. See United States v. Newdunn Assocs., No. CA 4:01cv86 (E.D. Va. Apr. 3, 2001); United States v. Rapanos, 2002 WL 373332 (E.D.Mich. 2002). See also Rice v. Harken Exploration Co., 250 F.3d 264, 31 ELR 20599 (5th Cir. 2001) (stating, in dicta, "under Solid Waste Agency, it appears that a body of water is subject to regulation under the CWA if the body of water is actually navigable or is adjacent to an open body of navigable water"). Id. at 269, 31 ELR at 20600. Many more courts have recognized the limits to the SWANNC ruling. See Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 31 ELR 20535 (9th Cir. 2001) (finding CWA jurisdiction over non-navigable irrigation canals that function as tributaries to other creeks and streams); Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81 (E.D. N.Y. 2001) (non-navigable pond and creek, which are tributary to lake and navigable river are waters of the United States); Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169 (D. Idaho 2001) (spring that runs into a pond that drains across a pasture into a canal that flows to a creek, that is either navigable or flows into a navigable river, is a water of the United States); United States v. Buday, 138 F. Supp. 2d 1282 (D. Mont. 2001) (distinguishing SWANCC and upholding CWA jurisdiction over wetlands adjacent to non-navigable creek 190 miles upstream from point at which waters become navigable); United States v. Rueth Dev. Co., No. 2:96-cv-540 (N.D. Ind. Sept. 25, 2001) (wetlands adjacent to ditch that flows into Little Calumet River are waters of the United States); United States v. Interstate Gen. Co., 152 F. Supp. 2d 843, 31 ELR 20750 (D. Md. 2001) (wetlands adjacent to headwaters, drainage ditches, and intermittent streams that ultimately flow into the Potomac River are waters of the United States).

38. 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000).

39. Id. at 486, 30 ELR at 20602.

40. Id. at 497, 30 ELR at 20607.

41. Id. at 499, 30 ELR at 20607.

42. Id. at 502, 30 ELR at 20609.

43. Id. at 507, 30 ELR at 20611.

44. Id.

45. Id.

46. Id. at 505, 30 ELR at 20610.

47. Id. at 504.

48. Lopez, 514 U.S. at 574.

49. Id.

50. See Jessica Matthews, Takings Exception, WASH. POST, Feb. 14, 1994, at A15.

51. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 22 ELR 21104, 21107 (1992) (until 1992, "it was generally thought the Takings Clause reached only a 'direct appropriation' of property . . . or the functional equivalent of a 'practical ouster of [the owner's] possession' . . . ."); id. at 1028 n. 15, 22 ELR at 21110 n.15 ("early constitutional theorists did not believe that the Takings Clause embraced regulations of property at all . . . .").

52. The foundation of the Court's "regulatory takings" jurisprudence is Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

53. United States v. Riverside Bayview Homes, Inc. 474 U.S. 121, 126, 16 ELR 20086, 20087 (1985).

54. See Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 199 (1985).

n55 See Tahoe-Sierra, 2002 WL 1468, at *1483 (rejecting the per se takings rule for moratoria advocated by the property owners because adopting it would "transform government regulation into a luxury few governments could afford").

56. 483 U.S. 825, 17 ELR 20918 (1987).

57. Id. at 828-31, 17 ELR at 20918-19.

58. Id. at 847-55, 17 ELR at 20922-20929 (Brennan, J., dissenting).

59. 505 U.S. 1003, 22 ELR 21104 (1992).

60. See id. at 1011, 22 ELR at 21106.

61. See id. at 1010-13, 22 ELR at 21106-08.

62. Id. at 1042, 22 ELR at 21114 (Blackmun, J., dissenting).

63. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 22 ELR 20913, 20916 (1992). Justice Scalia attempted to justify his decision in Lucas by arguing that Lujan was decided at the summary judgment stage while Lucas' claim for a temporary taking was decided at the pleading stage. This, however, was simply not the case: Lucas had a trial on the merits of his claim for damages for the temporary taking of his property and failed to demonstrate any imminent or concrete plans to build on or sell the lot. In short, Lucas did not (and probably could not) show that he had any intention of building on his property between 1988 and 1990, and, therefore, under a 17-day-old decision, also written by Justice Scalia, he lacked standing to even bring his temporary taking claim before the Court.

64. Richard J. Lazarus, Putting the Correct "Spin" on Lucas, 45 STAN. L. REV. 1411, 1418, 1420-21 (1993).

66. 18 F.3d 1560, 24 ELR 21036 (Fed. Cir. 1994).

65. The Federal Circuit Court of Appeals and the Court of Federal Claims were both created in 1982 and vested with the exclusive jurisdiction over takings claims against the federal government seeking over $ 10,000 in money damages. The Federal Circuit hears appeals from the Court of Federal Claims. Such jurisdiction gives these courts a singular ability to shape the development of takings law. In particular, subject only to discretionary review of the Supreme Court, these courts sitting in Washington, D.C., have the power to determine the viability of critical environmental protections including the wetlands protection provisions of the CWA and the habitat protection provisions of the Endangered Species Act (ESA).

67. See id. at 1562, 24 ELR at 21037.

68. See id. at 1563, 24 ELR at 21037.

69. See id.

70. See id. at 1565, 24 ELR at 21039.

71. Id. at 1568, 24 ELR at 21040.

72. Florida Rock Indus. v. United States, 45 Fed. Cl. 21, 23 (1999).

73. Judge Smith found a "partial regulatory taking" of the 98 acres and awarded plaintiff $ 754,444 plus interest from 1980, attorneys' fees and costs. Id. at 23, 43-44. He also strongly suggested that he would find a taking of the other 1,462 acres of land. See id. at 44. Assuming the same $ 7,700 per acre decrease in value is applied to these other acres, the total compensation award would increase to approximately $ 12 million, plus interest, attorneys fees, and costs. In cases where there is a long delay between a permit denial and a finding of a taking, interest charges can be many times the actual award. For example, in Whitney Benefits v. United States, 30 Fed. Cl. 411, 416 (1994), Judge Smith awarded $ 60 million in compensation for the right to strip mine coal, and more than $ 250 million in interest.

74. Michael C. Blumm, The End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 ENVTL. L. 171, 180 (1995).

75. See Florida Rock, 18 F.3d at 1575, 24 ELR at 21043 (Nies, C.J., dissenting) ("it requires little imagination to envision the vast sums required for lost value/use claims if the government must pay for mere impairment of rights.").

76. Florida Rock, 18 F.3d at 1560, 24 ELR at 21036 (Nies, C.J., dissenting); see also Jay Plager, Takings Law and Appellate Decision Making, 25 ENVTL. L. 161, 162-63 (1995) (acknowledging that the partial takings issue had not been "fully briefed and argued," and explaining that sometimes he has a "problem of trying to fit the issue you want to write about to the case that is before you").

77. 49 Fed. Cl. 313, 31 ELR 20648 (Fed. Cl. 2001).

78. Id. at 326, 31 ELR at 20653.

79. 988 F. Supp. 1055 (W.D. Mich. 1997).

80. 16 U.S.C. § 1131(c).

81. Id. § 1131(a).

82. Stupak-Thrall, 988 F. Supp. at 1060-61.

n83 Tahoe-Sierra, 2002 WL 1468, at *1483.

n84 Id. at *1482.

85. 533 U.S. 606, 631 (2001) (remarking that the Court has "at times expressed discomfort with the logic of [the parcel as a whole] rule"); see also Lucas, 505 U.S. at 1016, n.7, 22 ELR at 21107 n.7 (noting "uncertainty" regarding parcel as a whole rule).

n86 Tahoe-Sierra, 2002 WL 1468, at *1485, 1486.

n87 Id. at *1486.

88. Both Justices Thomas and Scalia joined Chief Justice Rehnquist's dissent. Only Justice Scalia joined Justice Thomas.

89. Id. at 7-8 (Rehnquist C.J. dissenting); see also id. at 19-20 n.19 (stating reasons "from both the landowner's and the government's standpoint there are critical differences between a leasehold and a moratorium").

90. Given their inconsistent statements on the issue in prior takings cases, it would be very dangerous to read too much into the silence of Justices Kennedy and O'Connor in Tahoe-Sierra. For more on the record of individual Justices on takings issues, see Richard J. Lazarus, Counting Votes and Discounting Holdings in the Supreme Court's Takings Cases, 38 WILL. & MARY L. REV. 1099 (1997).

91. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 703-704 (1999) (Breyer, J., dissenting).

92. U.S. CONST. amend. XI. The Eleventh Amendment states simply: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

93. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). To be fair, in this interpretation, the Court was merely reaffirming a principle announced 100 years earlier in Hans v. Louisiana, 134 U.S. 1 (1890). However, Hans is a relic of the Court's Lochner era, the Court's last dalliance with conservative judicial activism. As recently as 1987, a majority on the Court seemed inclined to overrule it. In Welch v. Texas Dep't of Highways, 483 U.S. 468, 496 (1987) (Scalia, J., dissenting), the Court divided evenly on the question of whether or not to overrule Hans, with Justice Scalia in the odd position of being the swing vote, questioning the "correctness of Hans as an original matter." Id. See also Pennsylvania v. Union Gas Co., 491 U.S. 1, 25, 19 ELR 20974, 20980 (1989) (Stevens, J., concurring) (arguing that Hans "departed from the plain language, purpose, and history of the Eleventh Amendment").

n94 See Seminole Tribe of Fla., 517 U.S. at 44. Seminole Tribe reversed the opposite opinion reached by the Court just eight years earlier in Union Gas Co., 491 U.S. at 1, 19 ELR at 20974. See also Federal Maritime Comm'n v. South Carolina State Ports Authority, 2002 WL 1050467 (U.S. May 28, 2002) (5-4 ruling interpreting Eleventh Amendment to bar complaints against states in executive branch tribunals); id. at *24 (Breyer, J., dissenting) (the "Court's decision may undermine enforcement against state employers of many laws designed to protect workplace health and safety") (citing whistleblower protection provsions of several federal environmental statutes).

95. See Alden v. Maine, 527 U.S. 706 (1999). Justice David H. Souter's dissent in Alden provides a scholarly, detailed, and persuasive rebuttal to the majority's Eleventh Amendment jurisprudence. Id. at 760 (Souter, J., dissenting). He ends his dissent with a stinging conclusion:

The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor the structure of the Constitution. I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.

Id. at 814.

96. See id. at 706.

97. See University of Ala. v. Garrett, 531 U.S. 356 (2001).

98. 490 U.S. 1, 19 ELR 20974 (1989), overruled by Seminole Tribe.

99. 248 F.3d 275, 31 ELR 20582 (4th Cir. 2001), cert. denied, 122 S. Ct. 920 (2002).

100. 30 U.S.C. § 1202(a), ELR STAT. SMCRA § 102(a).

101. 30 C.F.R. § 816.57.

102. 30 U.S.C. § 1270(a)(1), ELR STAT. SMCRA § 520(a)(1).

103. Bragg v. Robertson, 72 F. Supp. 2d 642, 30 ELR Digest 20115 (S.D.W. Va. 1999).

104. Id. at 661-62, 30 ELR Digest at 20115.

105. 209 U.S. 123 (1908). Ex Parte Young permits suits seeking injunctions against state officials under the presumption that in such cases the court is simply requiring the state official to act within the scope of the official's duty. The Court has narrowed the doctrine in recent years, see Edelman v. Jordan, 415 U.S. 651 (1974) (Young only permits prospective injunctions); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (no injunctions for state claims reached under supplemental jurisdiction); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 27 ELR 21227 (1997) (Ex Parte Young does not permit use of what amounts to a "quiet title" action against state officials), but Ex Parte Young remains a critical part of Eleventh Amendment law.

106. See, e.g., 30 U.S.C. § 1260(b)(1), ELR STAT. SMCRA § 510(b)(1) (requiring that permits issued under a state-approved program meet "all the requirements of this chapter and the State or Federal program"). See also 30 U.S.C. §§ 1257, 1271, ELR STAT. SMCRA §§ 507, 521 (allowing federal enforcement of state laws passed under SMCRA).

107. Molinary v. Powell Mountain Coal Co., 125 F.3d 231, 28 ELR 20035 (4th Cir. 1997).

108. Bragg does not prevent the Office of Surface Mining from stepping in to ensure that West Virginia complies with the minimum mandates of federal law. See 30 U.S.C §§ 1257, 1271, ELR STAT. SMCRA §§ 507, 521. However such federal "overfiling" is controversial and rare even when the president in office believes in strong federal environmental protections. It seems highly unlikely indeed in an administration committed to devolving responsibility for environmental protections down to the state. Indeed, the Bush Administration is intending to authorize the practice of mountaintop removal by regulation.

109. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 489 (1985).

110. 121 S. Ct. 1511 (2001).

111. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 (1964).

112. Justice Stevens' dissent in Sandoval provides a wonderful overview of this pendulum swing from the perspective of a Justice whose service on the Court has spanned both eras. It is illuminating enough to quote in some detail.

As the majority narrates our implied right of action jurisprudence, the Court's shift to a more skeptical approach represents the rejection of a common-law judicial activism in favor of a principled recognition of the limited role of a contemporary "federal tribunal." According to its analysis, the recognition of an implied right of action when the text and structure of the statute do not absolutely compel such a conclusion is an act of judicial self-indulgence. As much as we would like to help those disadvantaged by discrimination, we must resist the temptation to pour ourselves "one last drink." To do otherwise would be to "venture beyond Congress's intent."

Overwrought imagery aside it is the majority's approach that blinds itself to congressional intent.

In order to impose its own preferences as to the availability of judicial remedies, the Court today adopts a methodology that blinds itself to important evidence of congressional intent.

Respect for Congress' prerogatives is measured in deeds, not words. Today, the Court coins a new rule, holding that a private cause of action to enforce a statute does not encompass a substantive regulation issued to effectuate that statute unless the regulation issued to effectuate that statute does nothing more than "authoritatively construe the statute itself." This rule might be proper if we were the kind of "common-law court" that the majority decries. For if we are not construing a statute, we may certainly refuse to create a remedy for a federal regulations. But if we are faithful to the commitment to discerning congressional intent that all Members of this Court profess, the distinction is untenable. There is simply no reason to assume that Congress contemplated, desired, or adopted a distinction between regulations that merely parrot statutory text and broader regulations that are authorized by statutory text.

121 S. Ct. at 1533-35 (Stevens, J., dissenting).

113. See infra notes 119-26 and accompanying text.

114. 121 S. Ct. at 1521 (quoting 28 C.F.R. § 42.104(b)(2)).

115. This cause of action under Title VI was originally implied by the Court, but has subsequently been recognized and expanded by Congress.

116. Section 602 authorizes federal agencies "to effectuate the provisions of [§ 601] by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1. The U.S. Department of Justice promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individual to discrimination because of their race, color or national origin. . . ." 28 C.F.R. § 42.104(b)(2) (1999).

117. 121 S. Ct. at 1523.

118. Id.

119. Id.

120. Id. at 1527 (Stevens, J., dissenting).

121. Id. at 1529-31.

122. Id. at 1529.

123. Id. at 1531.

124. 274 F.3d 771, 32 ELR 20425 (3d Cir. 2001).

125. 463 U.S. 582 (1983).

126. Id. at 594-95, 607 (White, J.); id. at 634 (Marshall, J., dissenting); id. at 638 (Stevens, J., dissenting).

127. Section 1983 provides a cause of action against "every person who, under color of any statute . . . causes . . . the deprivation of any rights, privileges or immunities secured by the Constitution and laws." As the D.C. Circuit Court of Appeals has explained, § 1983 "allows private parties to enforce federal laws against a special class of defendants—state and municipal actors—in much the same way that implied rights of action permit private enforcement of federal statutory obligations against any party, public or private." Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985).

128. 121 S. Ct. at 1527.

129. 274 F.3d at 771, 32 ELR at 20425.

130. 189 F.3d 387 (3d Cir.), cert. denied, 528 U.S. 1046 (1999).

131. Id. at 397 ("Plaintiffs' second count invokes one of the Civil Rights Acts, 42 U.S.C. § 1983 to address the defendants' alleged violation of the regulation . . . . We see no reason to hold that resort to § 1983 has been foreclosed here."). Powell held both that there was a private cause of action to enforce § 602 regulations directly under Title VI and that § 602 regulations could be enforced under § 1983. The first holding was overruled by Sandoval, but the second one was not. See 274 F.3d at 789 n. 12 ("it is true, as the district court repeatedly noted that 'the holding in Sandoval is limited to the determination that § 602 itself does not create a right of private action'").

132. South Camden Citizens in Action v. New Jersey Dep't of Envtl. Protection, 145 F. Supp. 2d 505 (D.N.J. 2001).

133. 274 F.3d at 785. The majority had to characterize Powell's holding as dicta because a prior Third Circuit holding is binding precedent that can only be overruled by the Supreme Court or an en banc panel of the circuit.

134. Id. at 794 (McKee, J. dissenting). Judge Theodore A. McKee declared herself "frankly astounded by the analytical alchmeny" used by the majority to reach the decision that Powell was not controlling. In the dissent's words:

The fact that we "merely rejected" defendant's arguments that § 1983 does not allow a private cause of action to enforce regulations does not negate the fact that the result of refuting those arguments was that we found plaintiffs had a cause of action under § 1983, and that was part of our holding. The majority's attempt to suggest the contrary is tantamount to arguing that "merely rejecting" the argument that 2 plus 2 does not equal 3 does not at the same time establish that 2 plus 2 does equal 4.

Id.

135. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK L. REV. 881 (1983); see also Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992) (comparing the ideas in Justice Scalia's law journal article with his opinion in Lujan).

136. Prominent scholars are virtually unanimous in their conclusion that nothing in the Constitution or in the practice of courts suggests that there are limits to the authority of Congress to create judicially enforceable rights. See Sunstein, supra note 135; Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371 (1988); Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 HARV. L. REV. 1265 (1961); Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 YALE L.J. 816 (1969).

137. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 28 ELR 20434 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 22 ELR 20913 (1992).

138. Lujan, 504 U.S. at 562, 22 ELR at 20915 (when an "injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed"); Sunstein, supra note 135 (explaining why Congress and the Warren Court rejected the distinction between objects and beneficiaries).

139. Lujan, 504 U.S. at 571, 22 ELR at 20917. As noted below, in Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 30 ELR 20246 (2000), the Court, over a dissent by Justices Scalia and Thomas, ruled that an environmental group had standing to sue in a CWA case and called into question many of the most far-reaching assertions made by Justice Scalia in Lujan and Steel Co.

140. 504 U.S. 555, 22 ELR 20913 (1992).

141. 504 U.S. at 606, 22 ELR at 20927 (1992) (Blackmun, J., dissenting). One of President Bush's nominees to the D.C. Circuit, John Roberts, represented the United States in Lujan. Although the views advanced as an advocate do not necessarily reflect the position one might take as a judge, it is important that the Senate scrutinize Mr. Roberts' view on standing to determine whether he would, as a judge, properly adhere to standing precedent or pursue an antienvironmental assault on the ability of citizens to vindicate their claims in court.

142. Id. at 566-67, 22 ELR at 20917.

143. Id. at 567 n.3, 22 ELR at 20916 n.3; id. at 584 n.2, 22 ELR at 20921 n.2 (Stevens, J., concurring).

144. Id. at 567 n.3, 22 ELR at 20916 n.3.

145. Id. at 561-62, 22 ELR at 20916.

146. 520 U.S. 154 (1997).

147. 504 U.S. at 576, 22 ELR at 20919.

148. Sunstein, supra note 135, at 165.

149. 523 U.S. 83, 28 ELR 20434 (1998).

150. Id. at 124, 28 ELR at 20442 (Stevens, J., concurring in the judgment) ("'Redressability,' of course, does not appear anywhere in the text of the Constitution. Instead, it is a judicial creation of the past 25 years.").

151. 42 U.S.C. § 11046(a)(1), ELR STAT. EPCRA § 326(a)(1).

152. 523 U.S. at 107, 28 ELR at 20438.

153. Id. at 109, 28 ELR at 20439.

154. 528 U.S. 167, 30 ELR 20246 (2000).

155. Id. at 185-86, 30 ELR at 20249.

156. Id. at 205, 30 ELR at 20253 (Scalia, J., dissenting).

157. See id. at 198, 30 ELR at 20254. Laidlaw involved a question of judicial authority under Article III of the Constitution. While recognizing that "conformity of this legislation with Article II [which defines the power of the executive branch] has not been argued," id., Scalia quotes language from Article II and clearly implies that he would be sympathetic to limiting environmental litigation under this separate constitutional rubric.

158. See Richard J. Pierce Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741 (1999).

159. Id. at 1742-43.

160. For added confirmation of this assertion, see Laidlaw, 528 U.S. at 198, 30 ELR at 20254 (citing Michael Greve, a nonlawyer who runs the far-right think tank Center for Individual Rights, for the proposition that environmental plaintiffs use citizen suit provisions to advance their "private interest").

161. See supra notes 59-64 and accompanying text (discussion of Lucas).

162. Justices Scalia, Thomas, and Ruth Bader Ginsburg all were elevated to the Court from the D.C. Circuit.

163. See Richard Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997). Professor Revesz conducted an empirical study of the environmental decisions of the D.C. Circuit over the last decade to confirm that ideology influenced results in environmental cases. In his words, his "study provides empirical support for the theory that D.C. Circuit judges employ a strategically ideological approach to judging." Id. at 1766. Professor Revesz suggests that his study provides "an argument against vesting in the D.C. Circuit exclusive venue over the review of important sets of environmental regulations." Id. at 1771.

164. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999).

165. Appeals Court Blocks EPA Effort to Impose Stricter Air Standards, BALT. SUN, May 15, 1999, at 4A.

166. See U.S. EPA, FACT SHEET, EPA'S NATIONAL AMBIENT AIR QUALITY STANDARDS: THE STANDARD REVIEW/REEVALUATION PROCESS (1997); see also Margaret Kriz, Why the EPA's Wheezing a Bit, NAT'L J., June 24, 1999, at 2166.

167. See American Trucking, 175 F.3d at 1034-39, 29 ELR at 21072-73.

168. Id. at 1034, 29 ELR at 21072.

169. Id. at 1057, 29 ELR at 21081 (Tatel, J., dissenting); see also 195 F.3d 4, 14, 30 ELR 20119, 20122 (1999) (Silberman, J., dissenting from denial of rehearing) (terming the panel's nondelegation ruling "rather ingenious, but . . . fundamentally unsound").

170. 175 F.3d at 1057, 29 ELR at 21081.

171. See id.

172. Kriz, supra note 166, at 2166.

173. Cass R. Sunstein, When Conservative Judges Turn Activist, SAN DIEGO UNION-TRIB., June 3, 1999, at B15.

174. Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 31 ELR 20512 (2001).

175. Id. at 913, 31 ELR at 20514.

176. Linda Greenhouse, Clean Air Act Rules Upheld by High Court, SAN DIEGO UNION-TRIB., Feb. 28, 2001, at A1.

177. 17 F.3d 1463, 24 ELR 20680 (D.C. Cir. 1994), rev'd, 515 U.S. 687, 25 ELR 21194 (1995).

178. 467 U.S. 837, 14 ELR 20507 (1984).

179. Id. at 843, 14 ELR at 20509.

180. 16 U.S.C. § 1532(19), ELR STAT. ESA § 3(19).

181. 50 C.F.R. § 17.3(c)(3).

182. See Sweet Home Chapter of Communities for a Greater Or. v. Babbitt, 515 U.S. 687, 694, 25 ELR 21194, 21195 (1995) (citing Neal v. Clark, 95 U.S. 704, 708-709 (1878)).

183. Sweet Home, 17 F.3d at 1465-66, 24 ELR at 20681.

184. Responding to the majority's application of noscitur a socils, Judge Mikva explained that the

the term "harm" is accompanied [in the ESA] by an assortment of words ranging from the precise and narrow "shoot" to the expansive "harass." . . . "Harm" is not a single elastic word among many ironclad ones but an ambiguous term surrounded by other ambiguous terms. Consequently, even if it is ever appropriate to measure an agency's construction of a statute against a seldom-used and indeterminate principle of statutory construction, this is not the place for noscitur a sociis.

17 F.3d at 1475, 24 ELR at 20687 (Mikva, C.J., dissenting).

185. Id. at 1473, 24 ELR at 20686.

186. See Sweet Home, 515 U.S. at 687, 25 ELR at 21194.

187. See id. at 701-02, 25 ELR at 21197.

188. National Mining Ass'n v. Corps of Eng'rs, 145 F.3d 1399, 28 ELR 21318 (1998).

189. Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 956 F.2d 321 (1992).

190. Harbor Gateway Commercial Property Owners' Ass'n v. EPA, 167 F.3d 602, 29 ELR 20584 (1999); Tex Tin Corp. v. EPA, 992 F.2d 353, 23 ELR 20823 (D.C. Cir. 1993).

191. American Petroleum Inst. v. EPA, 216 F.3d 50, 30 ELR 20686 (2000); Natural Resources Defense Council v. EPA, 25 F.3d 1063, 24 ELR 20959 (1994).

192. For example, in Florida Audubon Society v. Bentsen, 94 F.3d 658, 27 ELR 20098 (D.C.Cir. 1996) (en banc), the court dismissed a claim brought by environmental organizations to compel the Department of Treasury to assess the potential environmental impacts of a large tax credit proposed for a gasoline additive. The court denied environmentalists standing to sue in the case even though they offered detailed affidavits, expert testimony and numerous reports demonstrating that they could suffer injury to their use of wildlife habitat and to their drinking water supplies from the tax credit. According to Judge Sentelle, it is not enough for a plaintiff to show that he is "injured as is everyone else," id. at 667 n.4, 27 ELR at 20102 n.4, or even that he is "more likely to sustain injury" than others. Id. at 667, 27 ELR at 20102. Responding to the dissent's charge that the court's opinion will make it "effectively impossible for anyone to bring a National Environmental Policy Act claim in the context of a rulemaking with diffuse impact," id. at 672, 27 ELR at 20105, Judge Sentelle answered, essentially, so be it. The flaw, according to Judge Sentelle, lies in "the nature of the plaintiff's claim" which alleged "diverse environmental impacts." Id. at 666, 27 ELR at 20100. Such claims are "too general for court action." Id. at 667 n.4, 27 ELR at 20102 n.4.

The position on standing taken by Judge Sentelle in Animal Legal Defense Fund v. Glickman, 130 F.3d 464, 28 ELR 20395 (D.C. Cir. 1997), was even more extreme. In Sentelle's words, "a regulation which permits third parties to engage in offensive behavior, but does not require them to do so, may fairly be said to cause an injury resulting from the behavior of the third parties." Id. at 469 (emphasis added). This ruling was reversed by the full D.C. Circuit, see 154 F.3d 426, 29 ELR 20202 (D.C. Cir. 1998), but three D.C. Circuit judges joined Judge Sentelle in dissenting from the en banc reversal. Glickman thus perfectly illustrates the stakes involved in President Bush's opportunity to fill three current vacancies on the D.C. Circuit. If Judge Sentelle's position in Glickman ever commands a majority, it will knock out of court the lion's share of citizens' litigation seeking to strengthen environmental regulations. Specifically, because EPA does not itself emit pollution, nor require polluters to do so, Judge Sentelle's approach would rule that affected citizens lack standing to challenge environmental regulations for undue laxity, or to sue to compel issuance of stronger regulations.

193. Christopher H. Schroeder & Robert L. Glicksman, Chevron, State Farm, and EPA in the Courts of Appeals During the 1990s, 31 ELR 10371, 10392 (Apr. 2001). The article was selected, through a peer-review process, as one of the 10 best published in the areas of environmental and land use law during 2000-2001.

194. Id.

195. Id. at 10384.

196. See, e.g., Ethyl Corp. v. EPA, 51 F.3d 1053, 25 ELR 20817 (D.C. Cir. 1995).

197. Natural Resources Defense Council v. EPA, 824 F.2d 1146, 17 ELR 21032 (D.C. Cir. 1987).

198. Pierce, supra note 158, at 1760.

199. Revesz, supra note 163, at 1766.

200. Id. at 1763.

201. Compare Environmental Defense Fund v. EPA, 82 F.3d 451, 468-69 (D.C. Cir. 1996) (though conceding that EPA regulation allowed pollution in violation of the CAA, court upheld regulation) with National Mining Ass'n v. Corps of Eng'rs, 145 F.3d 1399 (D.C. Cir. 1998) (striking down regulation designed to protect wetlands and other waters from destruction).

202. 483 U.S. at 837, 17 ELR at 20921.

203. California v. Montrose Chem. Corp., No. CV-90-03122-AAH (C.D. Cal.) (transcript of March 22, 1995 hearing), at 8.

204. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

205. Id. at 1064, 28 ELR at 20413.

206. Id. at 1031, 28 ELR at 20411.

207. 45 F. Supp. 2d 368 (S.D.N.Y. 1999).

208. Id. at 393.

209. Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49 (2d Cir. 2001).

210. 115 F.3d 367, 27 ELR 20961 (6th Cir. 1997).

211. Id. at 368, 27 ELR at 20961.

212. United States v. Rapanos, 235 F.3d 256, 260, 31 ELR 20357, 20358 (6th Cir. 2000).

213. Patricia M. Wald, The Role of the Judiciary in Environmental Protection, 19 B.C. ENVTL. AFF. L. REV. 519, 535 (1992) (quoting THOMAS M. HOBAN & RICHARD O. BROOKS, GREEN JUSTICE: THE ENVIRONMENT AND THE COURTS 6 (1987) (internal quotes omitted)).

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