When all else fails, go to court

  • Ray Ring

 

The national environmental movement is spinning its wheels in Congress and accomplishing very little.

The big groups lobbied like crazy in 2008 and 2009 on the crucial issue of limiting the fossil fuels that cause climate change, but couldn't get the Senate to approve even a moderate move to curb carbon emissions with a "cap-and-trade" system. And whatever happened to the tough approach of an outright tax on carbon emissions, which would pressure everyone to re-evaluate all the myriad ways we squander energy? Forget about it.

Now, with the 2010 elections having elevated anti-green Republicans to take over the House of Representatives, many environmentalists are exhausted just trying to block congressional cutbacks and eviscerations of existing programs and laws.

The going-nowhere Congress makes President Barack Obama's role in environmental issues even more important. So environmentalists are also focusing on the president, trying to get him to oppose the worst of the House's efforts, and seeking new executive-branch regulations on polluting industries and other activities that impact land and water.

Yet there's one presidential power that doesn't get a lot of press even though it has the potential to drastically alter the landscape, and that's the placement of federal judges.

All judges strive to be objective, in theory at least, but they're only human. In recent years, environmentalism has become an almost purely partisan issue. Research shows that federal judges appointed by Democratic presidents show a tendency to rule in favor of environmentalists' arguments, while Republican judges tend toward the opposite. For example, in 2004, the nonpartisan Environmental Law Institute analyzed more than 300 environmental cases in federal courts and found that Democratic judges ruled for environmentalists 60 percent of the time, while Republican judges ruled for environmentalists just 28 percent of the time.

New York University law professor Richard Revesz analyzed more than 200 environmental cases in the key appeals court in Washington, D.C., from 1970 to 1994, and found that "ideology significantly influences judicial decision making." A 2003 study by law professors at the University of Chicago, Harvard and the University of California "strongly confirmed" the importance of politics and ideology in judges' rulings in environmental cases.

Since a federal judgeship (not including federal magistrates, a different job title) is a lifetime appointment, it is arguably the arena in which a president has the longest-lasting impact.

When Obama took office, nearly 60 percent of the 875 active federal judges were Republican. By mid-April, the Senate had approved 79 Obama nominees for judgeships, including promotions of some Clinton-era judges to higher courts and, of course, two Supreme Court justices, making the highest court now 5-4 Republican. But Obama has been distracted by wars overseas, the meltdown of the U.S. economy and political gridlock in D.C., and has yet to nominate candidates for all the vacancies. He also continues to face resistance from Senate Republicans who refuse to approve dozens of his nominees.

In courts in the West and in Washington, D.C., where judges rule on cases brought by Western environmentalists, there are now about 24 vacant judgeships. One example of Obama's impact is his appointment of Nancy Freudenthal, the wife of former Wyoming Gov. Dave Freudenthal, a Democrat, as a federal judge in Wyoming. She replaced elderly U.S. District Judge Clarence Brimmer, who was appointed by Republican President Reagan and often ruled against environmentalists on issues such as roadless-forest policy and snowmobiles in Yellowstone National Park. Brimmer has stepped back to "senior status," handling only a few cases. One of Judge Freudenthal's first rulings, made last September, upheld most of the U.S. Fish and Wildlife Service's plan to designate critical habitat for lynx in six states. Snowmobile groups were disappointed; environmentalists were pleased.

On the horizon, there's the sunset of U.S. District Judge Don Molloy in Missoula, Mont., who often handles controversial cases about wolves, grizzlies and national forests. Molloy has said he plans to go on senior status later this year. Environmentalists generally like Molloy, while conservatives complain that he's biased against them. Whoever Obama appoints is sure to make decisions that change the face of the region. It's a safe bet that environmentalists are already lobbying to try to fill Molloy's seat, as well as other vacant Western judgeships, with thoughtful people who will allow their arguments a fair hearing.

Ray Ring is a contributor to Writers on the Range, a service of High Country News in Paonia, Colorado (hcn.org). He is the magazine's senior editor in Bozeman, Montana.

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