For more than 30 years, environmental laws ranging from the lean Air Act to the Endangered Species Act have provided a formidable weapon for activists and ordinary citizens trying to protect the environment. While the environment does not always prevail in court, litigation has become an essential protection tool.
If the Bush administration has its way, that could all change, some legal analysts say. When George W. Bush took office in early 2001, there were more than 100 vacancies on the federal bench--an unusually high number. Since then, he has nominated scores of candidates to fill those judgeships. But critics say that in stead of choosing potential judges with strong records of upholding the law, Bush's nominations are an orchestrated attempt to spread his ideology.
It's not unusual for a president to nominate like-minded judges. But with so many seats vacant, Bush--who has cited conservative Supreme Court justices Antonin Scalia and Clarence Thomas as his models of judicial excellence--has a unique opportunity to stock the courts with political soulmates.
"The federal government's ability to enforce the law and to protect people is at issue here;' says Glenn Sugameli, an environmental lawyer with Earthjustice. "There is the ability to change how judges will be ruling on a whole range of issues." And once confirmed, federal judges stay on the bench for life.
A glance at federal court records suggests that the administration has "already begun using the courts to weaken environmental protections. Department of Justice attorneys have consistently failed to defend legal challenges to strong environmental policies, such as the Clinton administration's "roadless rule;' which would protect over 58 million acres of road-flee national forest lands throughout the country. Add a well-placed smattering of anti-environment judges to the federal courts, and far greater damage could be done, Sugameli warns.
According to the Senate Judiciary Committee, after almost three years of nominating and confirming, about 52 vacancies remain, or about six percent of the 877-member federal judiciary. About 50 nominations are waiting to be taken up by either the committee or the full Senate, which must give confirmation. Twenty seven vacancies have been open for so long that they are considered "judicial emergencies."
Bush may have the opportunity to choose a Supreme Court justice, too: at least one, and possibly two of the high court's justices could soon retire. With many controversial cases decided 5-4, the replacement of even one justice--particularly the decidedly left-leaning Justice Stevens, age 81--could have a big impact on the court's rulings.
Earthjustice and a growing cadre of other green groups, including the Community Rights Council (CRC), the Natural Resources Defense Council (NRDC), Friends of the Earth and the Sierra Club have joined in a multi-pronged fight to keep Bush's most troublesome nominees off the federal judiciary.
Of the courts currently awaiting new judges, the little known Court of Federal Chinas, whose wide-ranging influence is out of proportion to its public profile, is a top concern among greens. According to a joint report released by CRC, NRDC and the Alliance for Justice "'called "Hostile Environment;' the court already has a reputation for lending a sympathetic ear to so-called "takings" claims filed by property rights advocates. The court has decided in Favor of plaintiffs who have argued that the Fifth Amendment, which states that property cannot be taken for public use without "just compensation," requires governments to pay landowners whose property diminishes in value because of environmental regulations.
It's this court that will decide a case filed by Klamath Basin farmers alleging that the federal government's decision to cut off irrigation water to aid fish and other wildlife amounted to a taking of their …