There have been no Court vacancies since 1994, the second-longest period in history. Any one retirement has the potential to drastically affect the balance of the Court. For example, in one recent term, nearly one-third (26 of 79) of the Court's decisions were split 5-4. One or more new justices could affect many cases in which the Court has been narrowly divided on both the result and the scope of its rulings.
Justice O'Connor played a pivotal role on environmental cases during her tenure on the Court. For example, just last year, she cast the decisive vote in a 5-4 ruling protecting clean air in Alaska Department of Environmental Conservation v. EPA (2004). This landmark case upheld the Environmental Protection Agency's authority to step in and take action to reduce air pollution under the Clean Air Act when a state conservation agency fails to act. She also broke with her more conservative colleagues in supporting clean water in Friends of the Earth v. Laidlaw (2000); endangered species in Sweet Home v. Babbitt (1995); and safeguards for Lake Tahoe in Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency.
If the next justice fails to support our nation's environmental laws, decades of environmental progress could be reversed within the next few years.
What's at Stake: The Supreme Court's Environmental Reach
The Supreme Court decides whether to enforce, limit, or strike down the laws that safeguard the air we breathe, the water we drink, and the places where we live, work, and enjoy the outdoors. It is the ultimate judge of whether those laws authorize or prohibit a wide range of activities affecting our air, water, land, forests, and oceans. Each of the nine justices who sit on the Supreme Court is critical to protecting public health and the environment.
From the moment that modern federal environmental laws were enacted, the Supreme Court has played a major role in shaping and interpreting them. The Court has issued numerous important decisions on the application, scope, and limits of pollution control statutes like the Clean Water Act, Clean Air Act, and federal waste laws, as well as the National Environmental Policy Act, Endangered Species Act, Wilderness Act, and other laws that protect our lands and natural resources.
In addition, the Court's decisions in environmental cases have established cross-cutting constitutional principles of citizen standing (Lujan v. Defenders of Wildlife, 1992), and rules on judicial deference to agency actions (Chevron v. Natural Resources Defense Council, 1984). Its decisions in other areas of law have limited citizens' ability to bring suit against state entities to enforce environmental laws (Seminole Tribe v. Florida, 1996).
In the past five years alone, the Supreme Court has weighed in on:
- the Environmental Protection Agency's authority to promulgate national ambient air quality standards (Whitman v. American Trucking Associations, 2001);
- the extent of federal jurisdiction to protect water and wetlands (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], 2001);
- the scope of parties' liability under the Superfund hazardous waste cleanup law (Cooper Industries v. Aviall Services, 2004);
- the Department of Interior's obligation to protect wilderness and potential wilderness areas (Southern Utah Wilderness Alliance v. Norton, 2004);
- environmental review of agency actions taken under international trade agreements (Department of Transportation v. Public Citizen, 2004);
- the scope of pesticide manufacturers' common-law liability for damage resulting from use of their products (Bates v. Dow Agrosciences, 2005);
- whether and when state and local agencies' land-use regulations run afoul of the Fifth Amendment “takings” clause and its “just compensation” requirement (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 2002); and
- preemption of state and local governments' ability to regulate vehicle emissions (Engine Manufacturers Association v. South Coast Air Quality Management District, 2004).
Indeed, in a single year -- the so-called “environmental term” of 2003-2004 -- the Court heard appeals in an unprecedented eight environmental cases, or fully ten percent of its carefully-chosen docket. Alarmingly, environmental plaintiffs had won each of these cases in the lower courts, suggesting that at least four of the current justices have consistently been reaching out to review, and potentially to reverse, pro-environment outcomes. While the Court's actual decisions during that term were a mixed bag for the environment, they included key setbacks -- including reversals on the wilderness, international trade, and preemption issues -- as well as some close calls that demonstrate just how much is at stake with the appointment of even one new justice.
Independence from Politics
The Judiciary, our third branch of government, was established to rise above partisan politics and operate independently to enforce our laws and the Constitution of the United States. Independent and fair judges are essential for protecting the environment, as the federal courts are often responsible for both upholding and enforcing fundamental environmental safeguards. When citizens, communities, and states go to court to defend wildlife and wilderness, seek relief from air pollution, and demand protection from unsafe drinking water, they depend on fair, independent judges. These judges must be willing to interpret and apply the original, protective intent of landmark laws like the Clean Air Act and the Clean Water Act -- not undercut and weaken these protections.
Fair and independent federal courts are more important than ever to environmental protections. Industry and radical right-wing groups have been launching sweeping challenges to the constitutionality of fundamental environmental safeguards.
The Senate's refusal to confirm mining lobbyist William Myers III to the Ninth Circuit Court of Appeals illustrates that nominees who are hostile to environmental protections will meet with resistance. The Senate should certainly refuse to confirm anti-environmental activists to the nation's highest court.
Justice O'Connor was recommended by Democratic Senator Dennis DeConcini, nominated by President Ronald Reagan and confirmed unanimously by the Senate. President Bush should select a consensus nominee who will garner the same bipartisan support.
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