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#732 - The Environmental Movement -- Part 1, 29-Aug-2001

In the United States, judges are usually considered to be "above
the fray" -- somewhat removed from politics and money. Of course
we all know this is not completely true because judges are humans
like everyone else; they are influenced by current events and
many of them relax at the country club where they rub elbows with
the owning class. Still, judges in the U.S. are usually thought
to be fair-minded, independent, and to the extent possible for
any human, unbiased.

Unfortunately, since about 1980, groups of wealthy right-wing
extremists have been conducting organized campaigns to change all
this, and now it is apparent that they have largely succeeded.

Increasingly, our federal judiciary is flagrantly partisan and
beholden to corporate money. As a result, environmental laws and
regulations in the United States are being gutted. For 30 years
environmental protection -- even environmental protection at the
local level -- has relied on lawsuits, or the threat of lawsuits,
to bring violators into compliance, to require reluctant
officials to enforce the law, and to hold the wealthy and the
powerful liable when they harm air, water, land, wildlife and
humans. Fear of legal liability has been a major restraint --perhaps
THE major restraint -- on the worst tendencies of both
individuals and corporations.

Now three recent reports reveal that the independence and
impartiality of the judiciary has been systematically compromised
by wealthy right-wing extremists.[1,2,3] As a result, many laws
intended to protect the environment, and intended to give
citizens access to the courts, have been rendered ineffective.

In a new report, Natural Resources Defense Council (NRDC) -- the
nation's best-known environmental litigation group -- says, "A
group of highly ideological and activist sitting judges are
already threatening the very core of environmental law.... In the
last decade, judges have imposed a gauntlet of new hurdles in the
path of environmental regulators, slammed the courthouse doors in
the face of citizens seeking to protect the environment, and
sketched the outline of a jurisprudence of 'economic liberties'
under the Takings and Commerce Clauses of the Constitution that
would frustrate or repeal most federal environmental
statutes."[1,pg.v]

Here are the outlines of the problem:

** Judges appointed to the federal bench during the past 20 years
have radically reinterpreted both the U.S. Constitution and the
laws passed by Congress. Evidently motivated by libertarian,
anti-government, free market theology, a generation of radical
activist judges has intentionally gutted many environmental laws,
regulations and citizen safeguards.

** Many state judges have been compromised by organized wealth.
The election -- rather than appointment -- of state judges was
promoted during the 1840s to extend democracy. Now, however, the
rise to power of super-wealthy right-wing extremists has opened
state judicial elections to the influence of organized wealth. A
report last year from the Georgetown University Law Center
reveals that many state judges must now raise $1 million or more
just to run for election. No matter who wins such an election,
corporate money gains a seat on the bench.[2]

** At least three right-wing extremist organizations have spent
tens of millions of dollars during the past decade sending
federal judges to all-expense-paid "educational seminars" in
resort locations where they learn to interpret the law according
to libertarian (anti-government), free-market theology. Over the
past decade, a majority of the nation's federal judges have
undergone such training at the hands of libertarian, free-market
extremists. A former Chief Judge of the U.S. Court of Appeals for
the D.C. Circuit, Abner Mikva, says, "It may be a coincidence
that the judges who attend these meetings usually come down on
the same side of important policy questions as the funders who
finance these meetings.... But I doubt it."[3,pg.iv]

As a result of all this, the U.S. Supreme Court and the lower
federal courts have spent the last 10 years reinterpreting the
Constitution and federal laws, in these ways:

** The Commerce Clause of the Constitution: The basis for federal
environmental protections has always been the Commerce Clause of
the Constitution, which gives the federal government the right to
"regulate commerce among the several states."

The Supreme Court ruled this year that the Army Corps of
Engineers has no authority to prevent construction of a landfill
in wetlands needed by migratory birds. Such birds have
substantial interstate economic effects. They protect crops and
forests by holding insect populations in check. Furthermore,
millions of people spend more than a billion dollars each year on
recreation related to migratory birds. Nevertheless, the Supreme
Court decided that migratory birds have nothing to do with
interstate commerce, making this a state matter, not federal.

This was not the first Supreme Court ruling to reinterpret the
Commerce Clause to reduce the power of the federal government. As
a result, lower courts are experimenting with new ways to deny
federal authority over environmental matters. For example, a
federal judge in Alabama decided that the federal Superfund law
(requiring cleanup of toxic dump sites) did not apply to closed
dumps where there is no current economic activity; he decided
that a closed chemical dump was a local real estate matter,
beyond federal jurisdiction. This decision was overturned on
appeal, but it signals very clearly that reinterpretation of the
Commerce Clause is on the nation's judicial agenda.

As NRDC says in its new report, a string of recent court attacks
on the Commerce Clause shows that "our federal environmental
protections already hang in precarious balance." [1,pg.8]

** The Takings Clause of the Constitution: The fifth amendment of
the Constitution says, "nor shall private property be taken for
public use, without just compensation." Over the years, this has
been interpreted to mean that a land owner must be compensated if
the entire use of his or her property is destroyed by a federal
action. If any uses of the land remain after the federal action,
compensation is not required. Thus a zoning decision that denies
commercial use of land does not require compensation, so long as
the property can still support other uses.

Now, however, activist judges have spent 15 years reinterpreting
the takings clause in a series of high-profile cases. For
example, a federal judge ruled that a company seeking to mine
limestone out of the Florida Everglades had to be compensated
tens of millions of dollars when the federal government denied a
mining permit. The rock company admitted that it would still be
able to sell its land for twice the amount it had paid for it,
but the court overturned a hundred years of precedent and awarded
the company compensation for the "taking" of its mining
rights.[1,pg.12] Under this interpretation of the takings clause,
the federal government must pay every polluter to comply with
environmental laws.

In another case, federal protection of endangered salmon reduced
one California landowner's water rights somewhere between 8%
and 22% -- nowhere near the 100% taking that traditionally has
triggered compensation. The judge in this case concluded, "The
federal government is certainly free to preserve the fish; it
must simply pay for the water it takes to do so." As NRDC said,
"This conclusion tolls the death knell for effective federal
protections for our nation's freshwater species," 30% of which
are in danger of extinction.[1,pg.13]

** The 11th amendment to the Constitution prevents federal courts
from hearing lawsuits brought against a state government "by
citizens of ANOTHER state" or by citizens of a foreign country.

Now the U.S. Supreme Court has radically reinterpreted this clear
language, removing the word "another." Here's one example of how
the new interpretation of the Constitution helps corporate
polluters and their servants in state governments:

The first stated goal of the federal Surface Mining Control and
Reclamation Act (SMCRA) is to "establish a nationwide program to
protect society and the environment from the adverse effects of
surface coal mining operations." The law says no mining can occur
within 100 feet of a stream unless the mining company can show
that no adverse effects will occur to the stream. Despite this
language, West Virginia state officials have repeatedly issued
"mountain top removal" mining permits to coal companies. As the
name implies, "mountain top removal" means huge machines remove
the tops of mountains, dumping thousands of tons of rock and soil
into nearby valleys, burying streams beneath rubble, killing all
the life they support.

SMCRA also contains a citizen suit provision, so a W. Va. citizen
named Bragg sued in federal court to force West Virginia state
officials to comply with federal law. A federal appeals court
ruled against Bragg, saying the 11th amendment prevented him from
suing his state in federal court. So West Virginia officials are
free to ignore federal mining law.

** Citizens' standing to sue: Many federal environmental laws
contain a "citizen suit" provision" giving citizens the right to
sue in court to enforce the law. Now the citizen right to sue has
all but disappeared, thanks to recent federal court rulings. The
courts have ruled that most citizens have not been personally
harmed to a sufficient degree to give them "standing" to file a
lawsuit. For example, citizens who want the Endangered Species
Act enforced must show that failure to enforce the law has caused
them substantial personal harm. Few citizens (if any) can meet
such a test. Because of this and similar rulings by federal
judges, citizen suits are largely a thing of the past.

The worst part of all this is that the traditional environmental
movement is powerless to reverse these trends. Because the
movement has spent 30 years pursuing narrow legal and scientific
strategies, playing an insider's game of lobbying and rulemaking
in Washington, the movement has no real political base of active
citizens across the country who could rise up united and send a
strong message to the judiciary (and to Congress) that the
American people want environmental laws strengthened, not gutted.
In this important venue -- the courts -- wealthy corporations are
now holding almost all the cards and the traditional
environmental movement is powerless to stop them.

--Peter Montague (National Writers Union, UAW Local 1981/AFL-CIO)

=====

[1] Sharon Buccino and others, HOSTILE ENVIRONMENT; HOW ACTIVIST
JUDGES THREATEN OUR AIR, WATER AND SOIL (New York: Natural
Resources Defense Council, 2001). Available at
http://www.nrdc.org/legislation/hostile/hostinx.asp. A joint
report of the Alliance for Justice (http://www.afj.org/), the
Community Rights Counsel (http://www.communityrights.org/), and
Natural Resources Defense Council (http://www.nrdc.org).

[2] Environmental Policy Project, Georgetown University Law
Center, CHANGING THE RULES BY CHANGING THE PLAYERS: THE
ENVIRONMENTAL ISSUE IN STATE JUDICIAL ELECTIONS (Washington,
D.C.: Georgetown University, 2000). Available at
http://www.envpoly.org/sjelect/.

[3] Doug Kendall and others, NOTHING FOR FREE: HOW PRIVATE
JUDICIAL SEMINARS ARE UNDERMINING ENVIRONMENTAL PROTECTIONS AND
BREAKING THE PUBLIC'S TRUST (Washington, D.C.: Community Rights
Counsel, 2000). Available at http://www.tripsforjudges.org/.