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  Sierra Magazine
  November/December 2008
Table of Contents
Ice Manliness Cometh
A Six-Dog-Power Engine
I (Heart) Snowshoeing
Skiing Yellowstone
Welcome Back to the World
Rotten Fish Tales
Big Fun in the Green Zone
Hey Mr. Green
Comfort Zone
Mixed Media
Last Words
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Sierra Magazine

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Lay of the Land

Playing Chicken | 2020 Vision | Low Bench Marks | WWatch | The Hidden Cost of Gas | Sprawl | Bold Strokes | Updates

Low Bench Marks

A hostile environment in the federal courts

It seems like only yesterday that conservatives were complaining about the "judicial activism" of liberal jurists. But when it comes to ideologically driven decisions, disregard of legislative intent, and creative reading of the Constitution, it would be hard to match the current crop of right-wing federal judges. Most of these were elevated to the bench by Presidents Ronald Reagan and George H. W. Bush. As detailed in Hostile Environment, a recent report by the Alliance for Justice, Community Rights Counsel, and Natural Resources Defense Council, these judicial Samsons are seeking to pull down the legal pillars that support much of our environmental law, replacing them with "states’ rights" and "property rights."

The hostility of many judges to environmental laws is quite overt. Last May, for example, District Court Judge Edward Lodge, a darling of the "wise-use" movement, overturned a proposed ban on roadbuilding in 58 million acres of national forest, citing insufficient public input–despite 600 public hearings and more than 1.6 million public comments. And in a dissenting opinion in National Association of Home Builders v. Babbitt, D.C. Circuit Judge David Sentelle ridiculed the Endangered Species Act for "prevent[ing] 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." (In the case before him, the ESA did no such thing.) Another federal judge forbade New York’s Bedford High School from celebrating Earth Day, asserting that "[t]he worship of the Earth is a recognized religion."

A key goal of anti-environmental judges is trying to expand the takings clause of the Constitution. All this narrow provision requires is for the government to compensate landowners when it seizes their private property–for example, when a house is condemned to build a railroad. Anti-environmental judicial activists are reinterpreting the clause, claiming it requires compensation for government regulation of private property. In 1992, Justice Antonin Scalia led a Supreme Court majority in ruling for a would-be South Carolina beachfront developer who argued that his property had been "taken" by regulations that limited building in sensitive tidal areas. And in Tulare Lake Basin v. The United States, the U.S. Court of Federal Claims ruled in favor of farmers who asserted that federal protections for salmon and delta smelt resulted in a "physical seizure" of the federally subsidized water that the farmers claim as a property right. "The federal government is certainly free to preserve fish," the court held. "It must simply pay for the water to do so."

Also being reinterpreted is the Constitution’s commerce clause, which gives Congress the power to regulate matters that affect interstate business. Since pollution from one state can harm the economic welfare of another, and animals that provide tourism and hunting income migrate from state to state, this clause provides federal authority for many environmental laws. But the commerce clause’s traditional protection of migratory birds couldn’t stop the Supreme Court from ruling last year that Cook County, Illinois, could dump its trash on the birds’ wetland home. And in a dissent in a case challenging federal protection for red wolves in North Carolina and Tennessee, Appeals Court Judge J. Michael Luttig rejected the idea that the presence of wolves might encourage tourism (amply demonstrated in Montana and elsewhere), and urged that the wolf protection be struck down.

Luttig’s dissent might not be so alarming were he not on the short list of possible Bush appointments to the Supreme Court. Already Bush has surrounded himself with members of the right-wing Federalist Society (including Attorney General John Ashcroft, Solicitor General Theodore Olson, and Interior Secretary Gale Norton), and declared his favorite justices to be Clarence Thomas and Scalia, the foremost anti-environmental judicial activists on the high court. With one more like-minded justice, the court would have a solid anti-environmental majority that could set back environmental law by half a century.

by Paul Rauber

The report Hostile Environment is available at

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