Lawyers say Activist Judges are Undoing Environmental Protections

By Kathleen O'Neil

Several Supreme Court judges have recently narrowed their interpretation of important environmental laws that had allowed federal agencies to protect disappearing habitats and species. One such decision has left federal agencies unable to protect wetlands, as they had for 30 years, and no new law is in sight to restore those protections.

A panel of lawyers discussed the trend Oct. 12 at the Society of Environmental Journalists 12th Annual Conference in Baltimore. They said while some states- and landowner-rights activists applaud the new interpretations, the change could have a big impact on at-risk species.

"Little-known decisions have put environmental regulatory protection of wetlands and endangered species at risk through court activism," said Eric Glitzenstein, an environmental attorney based in Washington, D.C. "Extreme conservatives who get that chance are trying to re-make the law," he said.

Judges engage in activism when they strike out in a new direction in interpreting laws passed by Congress, something liberal judges have traditionally been accused of using to broaden environmental laws, he said. But several recent U.S. Supreme Court decisions are reversing that.

Steve Nickelsburg, also an attorney for a D.C. law firm, explained that many environmental protections evolved from a clause in the U.S. Constitution that grants Congress the right to regulate interstate commerce. Since pollution, habitats and animals do not recognize state boundaries, and have economic implications, the federal government's right to regulate and protect them has usually fallen under this clause, he said.

Federal protections for wetlands, for instance, were established in 1972 as part of the Army Corps of Engineers' right to control dredging and filling of navigable waters in addition to the Environmental Protection Agency's wetland protections under the Clean Water Act.

"Over the last 25 years, the Corps and the EPA expanded it to cover areas further and further upstream," Nickelsburg said. However, a 5-4 Supreme Court ruling last year invalidated the Corps's authority to protect isolated, non-navigable waters and wetlands used by migratory birds.

"The court said Congress didn't intend to protect migratory birds," Nickelsburg said. The recent decision allows the Solid Waste Agency of Northern Cook County (SWANCC) to fill more than 200 small ponds and lakes to create a large municipal landfill, according to a National Resources Defense Council report to which Glitzenstein contributed.

The court's decision indicates that Congress should create a specific wetlands protection statute, instead of leaving wetlands under the Clean Water Act's protection of navigatable waters, Nickelsburg said.

Glitzenstien said he and other environmentalists are very concerned about the long-lasting, permanent effects the new interpretation will have on wetlands throughout the country.

"As a result of this Supreme Court decision, we are losing thousands and thousands of acres of wetlands," he said, since no state regulations are being created to take over their protection.

The Supreme Court is also scheduled to hear a similar case this year that may indicate the court's intent to also cut back on the Clean Water Act's protections, according to Steve Quarles, an environmental attorney practicing in Washington, D.C.

"Much of our law is not specific enough to not allow extensive judicial interpretation," Quarles said, but added he doesn't think there is enough political support now to create stronger environmental laws, because landowners don't want to have to restrict development or make modifications at their own cost to protect species.

"The federal government doesn't want to coerce landowners to save habitat," Quarles said. "The only other choice you have is to pay for it, with a dedicated source of funds to protects those lands and those species."

Patrick Parenteau, professor of environmental law at the University of Vermont Law School, agrees there is little political support for a new national wetlands law or even new state laws.

"Thirty-five states have no laws protecting wetlands; 15 states do have them. The ones that don't want to pass them haven't," Parenteau said. Of the nation's 105 million acres of wetlands, 60 percent could fall under the SWANCC decision as isolated waters that are no longer protected, he said.

The best alternative, said Glitzenstein, is to educate people about judicial activism and to encourage them to participate in elections of judges.

"Judges can be from many backgrounds, but their alignment with a particular ideology - like when private property rights and maximizing profits are held more highly than other rights including community rights, or the Endangered Species Act - these are fundamental beliefs that should be debated in the open," Glizenstein said.

Kathleen O'Neil is a Master's student in environmental journalism at the University of Colorado at Boulder.