Summary

Our nation’s environmental protections constitute one of this country’s most significant accomplishments of the second half of the twentieth century. Through years of effort, visionary leaders and environmentalists have successfully translated public support for protecting natural resources—our air, water, and land—into effective and far-reaching legislation. Enjoying widespread popular support and bipartisan endorsement in Congress, these statutes have been strengthened in both Republican and Democratic administrations, and they have survived repeated, industry-funded rollback attempts.

These protections now face a grave challenge in an unlikely venue: our nation’s federal courts. A group of highly ideological and activist sitting judges are already threatening the very core of environmental law. New appointees to the bench could transform this threat into a death sentence for many environmental protections. In the last decade, judges have imposed a gauntlet of new hurdles in the path of environmental regulators, slammed the courthouse doors in the face of citizens seeking to protect the environment, and sketched the outline of a jurisprudence of “economic liberties” under the Takings and Commerce Clauses of the Constitution that would frustrate or repeal most federal environmental statutes.

These judges—most of them appointed to the bench by Presidents Ronald Reagan and George H. W. Bush—are engaging in anti-environmental judicial activism. They read into the Constitution powers of judicial oversight that courts have never previously exercised. They ignore statutory language and intent, substituting instead their own policy preferences. Although their opinions sometimes pay lip service to the benefits of environmental protections, their activist ideology leads them to invalidate these safeguards. They do this despite the widespread support our environmental laws enjoy among our elected representatives and the American people.