Cross-Examination May 2005

The Hapless Toad

Amid all the liberal hysteria about the threats posed by a conservative Supreme Court, one threat tends to be ignored—and it happens to be the biggest one
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Liberals talk as if the world will end if President Bush gets to name some new Supreme Court justices. How much of the danger is hype, and how much of it is real?

It's mostly hype. In general liberals fear conservative judges far too much. In almost all areas, in fact, they dramatically overstate the stakes. Except, that is, in one—where the stakes are truly immense and they dramatically understate them.

Let me guess: abortion?

Nah. Liberals have been overselling the threat to reproductive rights for decades.

Civil rights?

No way. The foundations of modern civil-rights law are exceptionally secure. Conservative judges nibble around the edges sometimes, and people still debate the constitutionality of affirmative-action programs. But almost no one seriously argues about the basic meaning or legitimacy of core civil-rights protections.

Criminal law?

Hardly. True, the Supreme Court has curtailed the Warren era's famed revolution in criminal procedure, and it has significantly rolled back review of state-court convictions. But this war is over; the conservatives have already won. And ironically, some of the conservatives themselves are now leading the Court's aggressive rights-creation effort in criminal sentencing.

Okay, I give up. What is it?

The environment—and it's no wonder you couldn't guess. Although environmental groups sometimes raise issues in the confirmation process, environmental protection is not central to the fear-mongering of the liberal interest groups that oppose conservative judges. But the threat to basic environmental protections from conservative jurisprudence is broad-based and severe.

Give me an example.

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?

These questions are not law-school hypotheticals. The constitutionality of protecting single-state endangered species from activity that may or may not be commercial in nature has been roiling the lower courts, splitting the most energetic conservatives from more-cautious ones. The D.C. Circuit Court of Appeals upheld protection of the hapless toad, as the Fifth Circuit did of "six species of subterranean invertebrates found only within two counties in Texas." (When a majority of the Fifth Circuit refused to rehear the latter case, a dissenting judge wrote, "For the sake of a species of 1/8-inch-long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel [has] crafted a constitutionally limitless theory of federal protection. Their opinion lends new meaning to the term reductio ad absurdum.") The Fourth Circuit, over a ferocious dissent, upheld protections for red wolves in North Carolina. But in 2001 the Supreme Court dodged the constitutional question posed by migratory birds by finding nonconstitutional grounds to invalidate an important federal regulation that protected seasonal pools in Illinois. So where, exactly, it is headed on this issue remains murky.

You say the commerce clause is also essential to civil-rights law. Why isn't the threat to equal rights under the law just as great as the threat to hapless toads?

Theoretically, it could be. Federal protections against private-sector discrimination are all rooted in the commerce power. But they are much more firmly rooted than the environmental statutes. All employers who discriminate and all whites-only lunch counters are, after all, engaged in commerce. And the decisions upholding the civil-rights statutes have become about as sacred as cows get. Only one justice—ironically, Clarence Thomas—has articulated a vision of the commerce clause narrow enough to disrupt these precedents. It is simply unimaginable that the courts will ever again interpret the commerce power as not protecting black people. Red wolves may not prove so lucky.

Is the changing interpretation of the commerce clause the only threat to the environment?

Far from it. In recent years the Rehnquist Court has breathed life back into the notion of states' immunity from suits for money—an immunity rooted in the Eleventh Amendment. This line of cases is exceedingly controversial, and rightly so; but its practical effects have been limited in application. In a disturbing and widely overlooked 2001 opinion, however, the Fourth Circuit used an Eleventh Amendment argument to block an environmental suit that sought to force West Virginia officials to stop letting mining companies blow the tops off mountains to get at the coal inside. A reinvigorated Eleventh Amendment could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine.

Okay, but even if the courts limit federal environmental protection, the states could step in and fill the gap, right?

Not so easily. First of all, many environmental problems are inherently interstate, and cannot reasonably be managed by any state government. Winds carry polluted air across state borders, for example; and migrating species don't check local species-protection laws before entering a state.

More significant, judicial conservatives have greatly energized the takings clause of the Fifth Amendment, which prohibits government seizure of private property without "just compensation." Traditionally, a taking has been defined as an actual expropriation of property. But the courts in recent years have made aggressive use of the concept of "regulatory taking"—that is, government action that so diminishes property values as to constitute a taking even without a formal expropriation. How far the Court will go in this direction remains unclear; there's some indication that its enthusiasm is waning. But the expanded concept of takings is already having dire consequences for environmental protection in the lower courts. Courts have found takings when the Army Corps of Engineers denied a company a permit to mine limestone in wetlands in Florida; when federal agencies imposed water-use restrictions to protect endangered smelt and salmon in California; even when the Forest Service imposed restrictions on the use of certain motorboats on a lake in Michigan. Such a broad reading of the takings doctrine effectively demands that government pay landowners to comply with the law.

Is that all?

No. The Rehnquist Court has also considerably narrowed previous doctrine concerning who has "standing" to bring a suit in the first place, insisting that a proper plaintiff have suffered an individual injury as a result of the supposedly unlawful conduct. I am sympathetic to this move as a conceptual matter. But once again, environmental laws stand to be particularly hobbled, because—rather unusually among federal statutes—they tend to provide not merely for governmental enforcement but for enforcement suits brought by citizens themselves. By tightening doctrinal requirements that limit citizen access to the courts, judges greatly reduce the legal accountability of polluters.

Is there any unifying theme here?

Yes: a libertarian suspicion of regulatory power. Environmental laws represent some of the most aggressive uses of federal power, and by their nature they limit the use of private property, sometimes quite intrusively. Thus they test the libertarian patience in more ways than many other types of regulations—and genuinely push up against the limitations on governmental power outlined in the Constitution. Tighten those limitations (even a little), as conservatives tend to do, and the dominoes of environmental law quickly begin tumbling.

Some conservatives have become sensitive to this problem in recent years. In fact, several of the most important recent pro-environment opinions—including the Fourth Circuit's decision affirming protection for the red wolf—were issued by conservative judicial luminaries. The battle over environmental law is as much a fight within conservatism as it is between conservative and liberal judicial minds.

But at least a portion of the judicial right also harbors a strain of simple hostility to environmental values. Dissenting in a 1997 Endangered Species Act case, Judge David Sentelle, of the D.C. Circuit, wrote,

This case concerns the efforts of San Bernardino County, California … to construct a hospital and supporting infrastructure for its citizens and other humans. Unfortunately, those efforts discomfit an insect—the Delhi Sands Flower-Loving Fly. According to the parties in this case, there are fewer than 300 breeding individuals of this species, all located within forty square miles in southern California.

The law, he sneered, would "prevent counties and their citizens from building hospitals or from driving to those hospitals by routes in which the bugs smashed upon their windshields might turn out to include the Delhi Sands Flower-Loving Fly or some other species of rare insect." Remember Judge Sentelle's contempt as the judicial-nomination wars heat up again this year. Because more than the fate of abortion rights or civil rights or criminal justice, what hangs in the balance in the future composition of the Supreme Court is the fate not only of the Flower-Loving Fly but of the red wolf, the hapless toad, the West Virginia mountains—and the air we breathe and the water we drink.

Benjamin Wittes is an editorial writer at The Washington Post.
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