Environment Lawyers Uneasy Over Roberts' Supreme Court Nomination

WASHINGTON, DC, July 19, 2005 (ENS) - President George W. Bush has selected Judge John G. Roberts, Jr. as his nominee to the Supreme Court of the United States, choosing a strong conservative who has argued against the right of an environmental group to file claims for protection against mining on public lands.

Judge Roberts now sits on the U.S. Court of Appeals for the D.C. Circuit where he has served since June 2003.

Announcing the nomination at the White House, President Bush said Judge Roberts "has a good heart."


President George W. Bush with his Supreme Court Justice Nominee John Roberts at the White House. (Photo by Eric Draper courtesy The White House)
"He has the qualities Americans expect in a judge: experience, wisdom, fairness, and civility. He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws, not legislate from the bench," the President said.

Judge Roberts said, "Before I became a judge, my law practice consisted largely of arguing cases before the Court. That experience left me with a profound appreciation for the role of the Court in our constitutional democracy and a deep regard for the Court as an institution."

Bush has requested that the Senate "act promptly" on the nomination, as he would like a full bench of nine justices when the Supreme Court reconvenes in October.

Born in 1955 in Buffalo, New York, Judge Roberts is a 1979 graduate of Harvard Law School. He then served as law clerk for Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit and the following year to then Associate Justice Rehnquist of the Supreme Court of the United States, who is now Chief Justice Rehnquist.

Judge Roberts served as Special Assistant to U.S. Attorney General William French Smith from 1981 to 1982 and Associate Counsel to President Ronald Reagan from 1982 to 1986.

He then joined the Washington, DC law firm of Hogan & Hartson where he developed a civil litigation practice, with an emphasis on appellate matters.


D.C. Appeals Court Judge John G. Roberts, Jr. has argued against government environmental regulation. (Photo courtesy Nationmaster)
From 1989 to 1993 he served as Principal Deputy Solicitor General of the United States. He returned to Hogan & Hartson in 1993 where he was the senior partner in charge of appellate practice when he was confirmed by the Senate to the D.C. Court of Appeals.

Earthjustice Executive Director Buck Parker said that the non-profit environmental law firm he leads is "concerned that Judge Roberts may fail to uphold our key environmental safeguards as a Supreme Court justice."

In a key 2003 environmental case, Rancho Viejo, LLC v. Norton, Judge Roberts questioned the constitutionality of Endangered Species Act safeguards, Parker said.

"Roberts’s arguments advanced a distorted view of Congressional power that could threaten to undermine a wide swath of environmental protections, including the Clean Air Act and the Clean Water Act," said Parker.

In another case, Parker said, “Judge Roberts also displayed a flippant attitude towards preventing the extinction of what he called ‘a hapless toad that, for reasons of its own, lives its entire life in California...’" Parker said this language contrasts with the consistent recognition of the value of species reflected by every court to consider the issue, including decisions by conservative Republican-appointed judges.

In opposing the 2003 nomination of Roberts to the D.C. Court of Appeals, the Alliance for Justice, which advocates for an independent judiciary, said Roberts has a record of "limiting the role of federal courts in protecting the environment."


Environmentalists are concerned that if Judge Roberts joins the Supreme Court, protection of public lands might be weakened. (Photo courtesy National Forest Protection Alliance)
While Acting Solicitor General, Roberts was the government’s lead counsel before the Supreme Court in Lujan v. National Wildlife Federation, a case brought against then Interior Secretary Manuel Lujan Jr. by citizens seeking to enforce environmental protections in response to the government’s decision to open 4,500 acres of public land to mining.

Members of the National Wildlife Federation asserted that they would be injured by the government’s decision to open the land to mining, citing recreational activities in which they had engaged and planned to engage in the future in that area.

Despite express statutory authorization for such suits, however, Roberts argued that plaintiffs, members of the National Wildlife Federation, had no right to file the claims, because they had not presented sufficient proof of the impact of the government’s actions on them to give them standing.

Roberts asserted that the D.C. Circuit, which had granted standing, had “presum[ed] facts that the parties did not - and perhaps cannot - allege on their own.”

The Supreme Court agreed with Roberts, tightening standing requirements for federal cases in one of a line of cases making it harder for plaintiffs to challenge governmental actions detrimental to the environment, the Alliance for Justice pointed out.

In a 1993 "Duke Law Journal" article, Roberts wrote in support of Justice Antonin Scalia’s majority opinion in the 1992 Supreme Court case Lujan v. Defenders of Wildlife, which limited citizens’ ability to bring challenges to government actions harming the environment.

In this case, plaintiffs, members of Defenders of Wildlife, had sued to compel the federal government to consider the potential harms to endangered species overseas before enacting programs that might affect those species.

Roberts agreed with Justice Scalia’s holding that, in spite of specific details about plaintiffs’ past activities involving those species and their future plans to engage in similar activities, they had not presented sufficient evidence to show the injury-in-fact necessary to obtain standing.

In his private practice, Roberts has argued both for and against environmental protection.

He submitted an amicus brief on behalf of the National Mining Association in the 2001 case Bragg v. West Virginia Coal Association.

Citizens of West Virginia who were adversely affected by the practice of mountaintop removal mining had sued the state, claiming that West Virginia’s issuance to mining companies of permits to extract coal by blasting the tops off of mountains and depositing the debris in nearby valleys and streams harmed both the environment and their homes.


Mountaintop removal allows companies to mine coal. Tons of waste rock are dumped into valleys below, burying streams. (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coalition)
The defendant West Virginia Coal Association argued that, because of the way in which the Surface Mining Control and Reclamation Act was structured, upon the federal government’s approval of its plan for implementing the Act, the state gained complete authority over decisions in this area, and so was immune from suits by private citizens.

"To the dismay of environmentalists," wrote the Alliance for Justice, "three Republican appointees to the Fourth Circuit - Judges Niemeyer, Luttig, and Williams - agreed, holding that the citizens could not sue in federal court to challenge West Virginia’s issuance to mining companies of permits."

In another case, however, Roberts represented the Tahoe Regional Planning Agency, which was defending its development moratorium on a pristine portion of Lake Tahoe.

“The Senate must fully and independently review this nomination, and determine whether as a Supreme Court justice, Judge Roberts would uphold the fundamental laws that protect our public health and environment,” said Parker of Earthjustice.

“Supreme Court justices decide whether to uphold or strike down environmental laws," Parker said. "The Senate has a duty to ensure that the next Justice will be committed to upholding these safeguards and protecting the rights of all Americans.