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

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.

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