Post Date: August 19, 2005

The following op-ed by Lecturer Noah Sachs originally appeared in The Baltimore Sun on August 17, 2005.

Supreme Court nominee Judge John G. Roberts Jr. hasn’t generated a lengthy paper trail revealing his views on environmental law, but he’s left the equivalent of a few Post-It Notes.

Scrutinizing his handful of opinions and articles, environmental groups are getting nervous about his potential impact on environmental law, especially given his long career at the center of the Republican legal establishment.

If confirmed, Mr. Roberts could tip the balance on a closely divided court in cases involving the Clean Air Act, the Endangered Species Act, control over private property and other hot-button issues. For conservatives, a Roberts confirmation could be the crowning achievement in a long battle to weaken environmental regulations.

As an attorney, Mr. Roberts often went head-to-head with environmentalists. Representing the National Mining Association, he defended the practice of blasting off mountain tops for coal mining in West Virginia in a case that was decided in 2001. As acting solicitor general, he successfully argued before the Supreme Court in 1990 that an environmental group did not have “standing” to challenge government plans to open vast federal lands to mining and other activities.

Standing, a procedural doctrine that examines whether a plaintiff has suffered sufficient injury to gain access to the courthouse, is often the key issue in a case for environmental groups. Decisions on who gets in determine what gets heard, and dismissal of a case on standing means that environmentalists’ substantive arguments are never considered by the court.

Of course, it’s tricky to glean a nominee’s personal views from arguments he made as an advocate. In fact, as an attorney, Mr. Roberts took at least one “pro-environment” case – representing the Tahoe Regional Planning Association in 2002 to defend its temporary moratorium on development near Lake Tahoe.

Mr. Roberts’ own articles (there aren’t many) are more revealing. In a brief 1993 law review article, Mr. Roberts praised an opinion by Justice Antonin Scalia that denied standing to environmentalists advocating for endangered species situated overseas. Mr. Roberts implicitly disagreed with a dissent signed by Justice Sandra Day O’Connor that asserted that the majority was subjecting environmental plaintiffs to unusually high barriers to standing.

What really makes environmentalists shake in their hiking boots is Mr. Roberts’ controversial 2003 opinion questioning federal power to protect endangered species. In that case, Rancho Viejo LLC v. Norton, a California real estate developer challenged a ruling by the U.S. Fish and Wildlife Service that required certain construction techniques to protect the arroyo toad, an endangered species known to live only in California.

Three judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled against the developer. Mr. Roberts voted to rehear the case on the grounds that the Endangered Species Act, passed under Congress’ authority to regulate interstate commerce, could not be used to protect a “hapless toad that, for reasons of its own, lives its entire life” in only one state.

This focus on the terrain-limited toad ignored the fact that the construction activities being regulated did have a substantial impact on interstate commerce. Luckily for the toad, the full D.C. Circuit voted not to rehear the case.

Mr. Roberts’ opinion in Rancho Viejo is a red flag for the big green organizations such as the Sierra Club. Mr. Roberts was propounding a narrow interpretation of the federal commerce power – far narrower than prior Supreme Court decisions required.

The federal commerce power is the foundation of modern environmental law, underpinning the Endangered Species Act and most major environmental legislation. While Ms. O’Connor largely supported federal authority to protect the environment through its commerce power, Mr. Roberts, her potential successor, could begin to erode this critical constitutional foundation of environmental law.

The larger issue here is that Mr. Roberts has built his career in an intellectual milieu hostile to environmental regulation. He has played leading roles in the White House of Ronald Reagan, the Justice Department of President George H.W. Bush and conservative organizations such as the National Republican Lawyers Association and the National Legal Center for the Public Interest, a business-oriented anti-regulatory group.

Yes, Mr. Roberts will look at the merits of each case, but gut-level inclinations matter, and we can guess which way he leans when it comes to environmental regulation.

Environmental law evolves slowly, but Mr. Roberts, who could serve four decades on the high court, may have plenty of time to make his mark. There’s reason to be concerned about what his potential tenure on the court could mean for the environment.

Noah Sachs is a lecturer and Climenko Fellow at Harvard Law School.