Chapter 3 - The Assault on Environmental Enforcement
Packing the courts
In the past twenty years, radical opponents of regulation have increasingly enjoyed success in the nation’s courts. Their strategy, crafted and led by ideologues in the Federalist Society and allied organizations, focused on selecting, nominating, and appointing judges to the Federal circuit courts who meet key tests, including a devotion to slashing government regulation of the environment, as part of an overall agenda to roll back the social and environmental gains of the past sixty years.
The efforts and successes of the radical right have alarmed an increasing number of judicial observers. One of the nation’s leading legal institutes for environmental affairs, the Environmental Law Institute, conducted a study to measure whether political affiliations were indeed impacting judicial decision-making. Their conclusion was shocking. In their study of 325 recent federal court decisions involving the National Environmental Policy Act, ELI found that circuit court panels with a majority of judges appointed by Democratic presidents “ruled in favor of environmental plaintiffs 58% of the time. In contrast, Republican-majority panels ruled in favor of environmental plaintiffs just 10% of the time – only
one-sixth as often.” (emphasis added).[32] The report noted that the growing number of federal judges appointed by Republican administrations should be of serious concern given the stark discrepancy in decision-making between Republican and Democratic appointees.
A prime example of the success of this strategy was the appointment of Justice Antonin Scalia to the Supreme Court in 1986. For defenders of the environment, Justice Scalia’s ascension to judicial power has provided a powerful voice for the anti-environmental message. Justice Scalia has devoted considerable effort to advancing his particularly restrictive view of the “standing” requirement. In his opinion, the established doctrine is far too liberal and should instead require that plaintiffs challenging government action show “personal hurt” by the action before they can have their day in court.[33] Although the Supreme Court has not yet restricted the federal standing doctrine to only those who have suffered personal hurt, it is a virtual certainty that Justice Scalia and allies on the high court will continue their efforts to restrict environmental advocates’ legal recourse.
