Nominee To Nation's High Court Raises Concerns For Environmentalists

The nomination of John Roberts to the U.S. Supreme Court has garnered both praise and condemnation.

Roberts, who was nominated on July 19, to replace Justice Sandra Day O'Connor, is considered to have the most distinguished record of any Supreme Court nominee in many years. He's an honors graduate of both Harvard College and Harvard Law School. In his career, he has served as a law clerk to Justice William Rehnquist, as an Associate Counsel to President Ronald Reagan, and as the Principal Deputy Solicitor General in the Department of Justice. The U.S. Senate confirmed Roberts to a judgeship on the U.S. Court of Appeals for the D.C. Circuit on May 8, 2003, and he received his commission on June 2, 2003.

"In public service and in private practice, he has argued 39 cases before the Supreme Court and earned a reputation as one of the best legal minds of his generation," President Bush said in announcing Roberts' nomination. "Judge Roberts has earned the respect of people from both political parties."

While his legal skills are well-known, Roberts has not left much to outline how he might rule on the high court. John Roberts has represented big business against employee claims, coal companies against polluted communities, and contractors seeking an end to government race preference programs. However, he appears to be the non-ideological, with Senate Democrats reserving judgment on him.

The initial public reaction to Roberts has been positive, and business and other conservative groups have praised the nomination. "Judge John G. Roberts Jr., the president's nominee for the Supreme Court, has a strong legal background, an appropriate judicial demeanor and relationships and experience with people and issues along the political spectrum," said U.S. Chamber of Commerce President and CEO Thomas Donohue.

However, environmental and other activist groups state that his record raises serious concerns. "It is extremely disappointing that the president did not choose a consensus nominee in the mold of Sandra Day O'Connor," said People For the American Way President Ralph G. Neas. "John Roberts' record raises serious concerns and questions about where he stands on crucial legal and constitutional issues -- it will be critical for senators and the American people to get answers to those questions."

Environmental groups are particularly concerned about his decision in Rancho Viejo LLC vs. Norton, 343 F.3d 1158 (D.C. Cir. 2003) where he strongly implied that Congress does not have the constitutional authority to protect certain species under the Endangered Species Act, as well as his decision in Sierra Club vs. EPA, 353 F.3d 976 (D.C. Cir. 2004), in which the found that EPA's pollution regulations for primary copper smelters were not arbitrary or capricious, as the Sierra Club had claimed. According to the Alliance for Justice, in a 1993 Duke Law Journal article, Roberts argued in support of Justice Antonin Scalia's majority opinion in the 1992 Supreme Court case Lujan vs. Defenders of Wildlife (504 U.S. 555), which the court decided that environmental groups lacked standing to challenge regulations jointly issued by the U.S. secretaries of the Interior and Commerce, regarding the geographic area to which a particular section of the Endangered Species Act applied.

"The Sierra Club is reviewing Judge Roberts' record on the environment, and while we have some initial concerns, we intend to do a thorough review of his history both on the bench and as an attorney," said Carl Pope, Sierra Club executive director. "Any Justice confirmed by the Senate should be committed to upholding the current law of the land to protect our air, water, and natural heritage. Our analysis of Judge Roberts' record will focus on whether he has a demonstrated commitment to upholding these fundamental laws to protect our environment."

U.S. Court of Appeals for the D.C. Circuit:

This article originally appeared in the 07/01/2005 issue of Environmental Protection.

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