Kelpie Wilson: The Hapless Environmentalist

The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States."
-- Justice John Roberts, dissenting opinion, US DC Circuit Court of Appeals, Rancho Viejo v. Gale Norton, No. 01-5373, July 22, 2003

Does a hapless environmentalist who, for reasons of his own, decides to protect a hapless toad, have any right to freedom of speech?

Does this hapless environmentalist have any standing to come before a court and advocate for the hapless toad under the laws of the land?

If the environmental laws passed by a hapless Congress happen to be based on the Constitution's commerce clause, will an excessively narrow interpretation of that authority by a future Supreme Court turn said laws to toad poop?

These are questions that must be asked as the Senate considers DC Circuit Court of Appeals Justice John Roberts for Chief Justice of the US Supreme Court. Roberts' opinion, cited above, represents an extreme activist judicial philosophy that would lead to the evisceration of the landmark environmental laws passed in the 1970s that cleaned up our air and water and brought the bald eagle and other endangered species back from the brink of extinction.

Passed off as "strict constitutionalism," a narrow interpretation of congressional powers to regulate interstate commerce is actually a radical form of judicial activism. Nearly every federal environmental statute relies on the commerce clause for its regulating authority. Removing that authority would obliterate those laws.

A recent letter from ten major environmental groups to the Senate Judiciary Committee outlines the dangers of the Roberts approach to the commerce clause as well as other environmental concerns with his nomination.

The attack on the commerce cause is just the most sophisticated tactic in an ongoing war against environmental laws. When Congress passed the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act and other environmental laws, it added citizen enforcement provisions, allowing citizens to act as "private attorneys general" wherever the federal government was unwilling or lacked the resources to pursue polluters.

Citizens proved most willing and able to defend their backyards and treasured natural places from pollution and development, so much so that by the end of the 1980s, there was a documented backlash of SLAPPs - Strategic Lawsuits Against Public Participation - by corporate interests against these citizen enforcers. University of Denver professors George Pring and Penelope Canan coined the acronym to describe the growing trend of lawsuits brought by corporations against citizens who were participating in government by filing petitions, attending public meetings or peacefully demonstrating. Although many SLAPPs are ultimately defeated, they have a chilling effect on citizen participation because they are so time-consuming and costly to defend.

Here is one example: Earlier this year, one of the most effective environmental groups in the country, the Center for Biological Diversity (CBD), lost a SLAPP brought against it by a wealthy cattle rancher and banker named Jim Chilton. Chilton sued CBD for defamation because the group had used a picture of his grazing allotment in an appeal of a Forest Service grazing plan. The picture showed a denuded, cattle-stomped stream that meanders in and out of Chilton's grazing allotment on public land. Because part of the picture showed some private land outside of the Chilton allotment, the Tucson Superior Court found that the picture was misleading, and that CBD had defamed Chilton's management practices. Chilton was awarded $600,000 in damages.

Kieran Suckling, policy director for CBD, is confident that the ruling will be overturned by a higher court on first amendment grounds, but admits he is "astonished that it went to trial at all."

It was telling to observe the gleeful reaction of the corporate interests to the Tucson court's decision. Here's how the Wall Street Journal put it: "Jim Chilton is one of hundreds of ranchers targeted by environmental groups for allegedly allowing cattle to despoil the West's backcountry. Now Mr. Chilton is showing ranchers how to turn the tables on the green groups by using their own playbook." The article never mentioned that citizen enforcement by "green groups" is an integral part of the Endangered Species Act.

Government regulators tend to get captured by the industries they regulate. Congress gave citizens enforcement powers to act as a check on that tendency. Under the Bush administration, the job of watch-dogging the agencies has become even more overwhelming, and public interest groups like CBD are struggling to fulfill their missions. SLAPPs are a crude but effective tactic to drain these citizen groups of their time and resources.

But the anti-regulators want more sure-fire weapons with which to beat back the hapless environmentalists. The case against CBD would never have gone to trial in California or any of the other states that have laws in place to guard against SLAPPs.

From an anti-regulator's point of view, it would be most effective to nip the citizen enforcers in the bud by denying them access to the courts in the first place. Citizens who sue under environmental laws are required to show that they are harmed in some way by the government's decision - this is called "standing" and it can be as simple as a declaration that a plaintiff resides near a proposed waste site or that his business or quality of life depends on the continued existence of wildlife.

In recent years, anti-regulators have been successful in raising the bar for proving standing and thus keeping citizens out of court altogether. Standing is one issue where a clear record exists of John Roberts' judicial philosophy.

In one of his early memos, Roberts said: "it will be our policy to raise standing and other justiciability challenges to the fullest extent possible." The aforementioned letter from environmental groups to the Senate Judiciary Committee points out that Roberts' statement was sweeping and unqualified and "it was not limited to cases in which the Justice Department believed there was no standing or even to cases where there was a serious question." Roberts would simply deny citizen access to the courts whenever possible.

Later, Roberts made the comment that Congress may not ask the Courts to exercise "oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue."

For Roberts, the issue of standing is one of infringement on the power of the executive branch of government. In a law review article, he said, "Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of one of the other branches."

Justice Scalia expanded on this argument in a dissenting opinion in Friends of the Earth v. Laidlaw (2000) when he said that turning over to private citizens the function of enforcing the law places the Chief Executive of the United States "on a par with John Q. Public who can intervene - whether the government likes it or not ..."

If John Roberts is confirmed as Chief Justice of the Supreme Court, it is clear that he will do his utmost to stop the hapless environmentalist, a.k.a, John Q. Public, from stealing power from the executive branch of government.

And so the hapless citizen, under the expectation that the constitution would provide him with a government "by the people and for the people," will only be able to stand by and watch as commerce runs roughshod over the land and the Supreme Court takes away another chunk of his democracy.

Kelpie Wilson is the t r u t h o u t environment editor. A veteran forest protection activist and mechanical engineer, she writes from her solar-powered cabin in the Siskiyou Mountains of southwest Oregon. Her first novel, Primal Tears, is forthcoming from North Atlantic Books in Fall 2005.

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