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Public Radio's Environmental News Magazine (follow us on Google News)

Judging Roberts

Air Date: Week of

President Bush's Supreme Court nominee John Roberts is facing scrutiny from all sides, and environmental groups are among the many who are sifting through his two-year record as a judge to see just what kind of Justice he might make. Host Jeff Young talks with Robert Percival, law professor at the University of Maryland, about some of Roberts' environmental opinions.


YOUNG: It’s Living on Earth. I’m Jeff Young. The U.S. Senate is gearing up for one of its biggest jobs: confirmation hearings for a Supreme Court nominee. Judge John Roberts is the president’s pick to replace retiring Justice Sandra Day O'Connor. Roberts served just two years as a federal judge, so Senators will likely have a lot of questions for him. Conservation groups say there are many things they’d like to know about Roberts too. Glenn Sugamelli with the group EarthJustice sees some red flags.

SUGAMELLI: He has a decision he wrote that calls into question the constitutional ability of Congress to protect endangered species, and his views on access to courts, the ability of people to go to court to make sure their rights are protected. We are not taking a formal position for or against his nomination. We are taking a formal position urging that the Senate look at it carefully. There’s only one chance to get it right.

YOUNG: Robert Percival has studied Judge Roberts through a green lens. He directs the environmental law program at the University of Maryland and he joins us from the NPR studios in Washington. Mr Percival, welcome to Living on Earth.

PERCIVAL: It’s nice to be here.

YOUNG: Now, environmental groups are focusing on an opinion that Judge Roberts wrote in an Endangered Species case. And it’s very interesting language that Judge Roberts uses in this opinion. The case has to do with this Arroyo Toad in California, which he calls “a hapless toad, that, for reasons of its own, lives its entire life in California.” What is it about this case that’s drawing their attention?

PERCIVAL: Well, Judge Roberts raised the question of whether or not the federal government had the constitutional authority to protect species that are so endangered that they exist only in one state and don’t ever cross state lines.

YOUNG: What’s special about the species only being within the boundaries of one state?

PERCIVAL: Well, the question is whether or not Congress has the power under the commerce clause to regulate purely intrastate activities. And most courts have found that because the protection of biodiversity has significant benefits for the economy, that Congress can justify that regulation under its authority to regulate interstate commerce even if a particular instance of that regulation might apply solely within state boundaries.

YOUNG: So, this is about the commerce clause of the Constitution, which, at first glance, you would not think, or I as a layperson would not think, has much of anything to do with endangered species, but it’s kind of the bedrock of that law, right?

PERCIVAL: It’s really the foundation for most of the federal regulatory infrastructure to protect the environment, to protect consumers, and to protect civil rights.

YOUNG: Do you have a guess as to what Judge Roberts thinks on this? He didn’t tip his hand in that opinion, but what do you think he thinks?

PERCIVAL: Well, you really can’t tell for certain. He did clerk for Justice Rehnquist, who has, for several decades, had an agenda to try to set constitutional limits on federal power. So this issue is something that probably has been on Justice, Judge Roberts’ mind for quite some time because it was raised as early as 1981 by his old boss Justice Rehnquist, now Chief Justice Rehnquist.

YOUNG: The other issue that we’ve heard environmentalists are very concerned about has to do with access to the courts. What is the issue there?

PERCIVAL: The question is really to what extent will citizens be permitted to go to court to help ensure that the environmental laws are implemented and enforced.

YOUNG: And why is this of special importance for environmentalists?

PERCIVAL: Because the history of environmental law demonstrates that in virtually every instance, it required citizen lawsuits to get agencies to carry out their statutory responsibilities to implement the environmental laws.

YOUNG: So, these are cases where the environmental agency in question is either unable or unwilling to apply the law, a citizen can say, hey, let’s do this.

PERCIVAL: Yes, or if the agency has done something that the environmental groups believe is illegal under the law, they can sue that agency.

YOUNG: Can you give me an example of where that’s been particularly important?

PERCIVAL: Well, one example that is particularly relevant to Judge Roberts’ nomination is a case that arose where the question was whether or not federal agencies could fund activities abroad that would wipe out the last remaining species of an endangered species. Justice Scalia in that case said that even if that was illegal, an improper interpretation of the statute, citizens could not go to court to challenge it unless they could demonstrate that they actually had a plane ticket to visit specific endangered species in Sri Lanka or Egypt. Judge Roberts subsequently wrote a law review article where he defended this decision against harsh criticism.

Now one thing that’s particularly important about this is, Justice O’Connor, who Judge Roberts would be replacing, had dissented in that case and had argued in an opinion that she joined, that what Justice Scalia had done was really a quote, “slash and burn expedition through the law of environmental standing.” So it seems clear that Judge Roberts would take a substantially narrower view of the ability of citizens to go to court to enforce the laws than Justice O’Connor took.

YOUNG: Well, this seems to me like a pretty big deal. A, you have this very important issue, of particular importance to environmentalists and environmental groups, and B, you have this fellow stepping into this seat that traditionally has been the swing on this kind of decision. Is this something that environmental groups should be worried about when they look at Judge Roberts and his record?

PERCIVAL: Well, it’s something that it would be very important to hear Judge Roberts address during his confirmation hearings. The question is, will he be a justice more in the mold of Justice Scalia and Thomas, who have been trying very hard to cut back on the ability of citizens to enforce the environmental laws, or will he be more like a Justice O’Connor, who has been much more moderate and understands the importance of citizens having access to the courts.

YOUNG: Robert Percival directs the environmental law program at the University of Maryland. Thanks for joining me today.

PERCIVAL: Thanks, it’s been a pleasure to be here.



The Center for Investigative Reporting project, information on Judge Roberts

Roberts’s "hapless toad" opinion comes in his dissent in the endangered species case Rancho Viejo v. Norton.


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