The contrasting environmental records of Vice President Gore and Governor George W. Bush will be hotly debated during the presidential campaign, but the potential impact of their appointments to the Supreme Court should be of equal, if not greater, concern. If, as President, Bush were to appoint Justices with views similar to those of Antonin Scalia and Clarence Thomas, the scope and strength of federal environmental law could be gravely weakened.
To date, the Rehnquist Court's environmental record has been mixed. While no darling of the greens, neither has it been consistently "brown." As evidence of the Court's lack of a clear environmental vision, consider two nineties cases brought under the same law–the Endangered Species Act. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Court strengthened the act by broadly interpreting the requirement of "harm" necessary to trigger its protections. Although a lower court had interpreted "harm" to mean actions causing the direct injury or death of an endangered species, the Supreme Court broadened the meaning to include indirect actions that impair its essential behavior patterns. In the Sweet Home case, the Court prohibited logging of old-growth forests not because it killed spotted owls but because it destroyed their habitat, jeopardizing their long-term survival. As a result, the Endangered Species Act's reach was significantly extended to cover not only actions likely to cause the injury of a species but the range of actions that adversely modify its habitat. In Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation, however (see below), the same Court erected significant obstacles to citizens' suits that seek to enforce the act.
The lack of a consistent pro- or anti-environment stance for the Court as a whole, however, does not mean that particular Justices' decisions in environmental cases have been random. In a recent analysis of the Supreme Court's environmental decisions over the past three decades, Georgetown law professor Richard Lazarus found two current Justices with consistent anti-environmental voting records: Scalia and Thomas. Their anti-environmental votes and the voting patterns of other current (and future) Justices can best be explained by focusing not on their views toward environmental protection per se but rather toward two distinct political issues–separation of powers and the protection of private property rights. As a general matter, Justices who believe in vigorous checks and balances between the branches of government (such as a strong role for the judiciary in reviewing agency action) and the right of government to restrict uses of private property will be more likely to decide in favor of environmental protections. These two predictors become most evident in reviewing the two major fault lines currently running through the law–citizens' access to courts and the scope of private property rights.
Virtually all of our major environmental laws contain citizen-suit provisions, providing a legion of private attorneys general to supplement the government's role in enforcing environmental laws. For citizen suits to vindicate the protections promised by those laws, however, private parties must be able to get into court in the first place. And to do so they must satisfy the requirements of "standing." They must demonstrate (1) that they have suffered an injury in fact; (2) that the injury is the result of an act forbidden under the law; and (3) that the court can provide redress. Primarily because of its narrow view of what constitutes an injury, the Rehnquist Court has until recently made it increasingly difficult for environmental plaintiffs to meet the requirements of standing.