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November 29, 2001

The Honorable Patrick J. Leahy
Chair, Senate Committee on the Judiciary
Washington, D.C. 20510

Re: Nomination of Lawrence J. Block to the U.S. Court of Federal Claims

(For more about the Court of Federal Claims, click here.)

(For more about Lawrence J. Block, click here.)

Dear Senator Leahy:

We respectfully urge you to consider our very serious concerns about Lawrence J. Block's pending nomination to the United States Court of Federal Claims, which decides nearly all federal "takings" claims. For several years, Mr. Block has promoted extreme legislation to redefine "takings" of private property in a manner that would threaten a wide range of safety, health, environmental, civil rights and other protections. His record and his description of these bills in his nominee questionnaire indicate that he would rule on constitutional takings claims in accord with the compensation and ripeness standards proposed in these bills. Mr. Block has even failed to acknowledge that the Supreme Court has unanimously rejected the standards that he has espoused.

If confirmed to the court, Mr. Block could issue rulings that force taxpayers to pay companies not to pollute or unfairly profit at the expense of neighboring people, private property and the environment. Such rulings would undermine basic safeguards by mandating prohibitively expensive payments to comply with the law.

Mr. Block's public responses to the Judiciary Committee Questionnaire for Judicial Nominees state that: "From January 4, 1995, to the present, I have been employed by the Judiciary Committee as Senior Counsel to Judiciary Committee Chairman Orrin G. Hatch. I am responsible for various legislative projects . . . . Specific endeavors included property rights legislation codifying compensation and ripeness standards . . . ." [emphasis added].

Mr. Block's current description of the failed 104th Congress "compensation" bills that he was "responsible for" echoes the results of his contemporaneous staff work. In introducing S. 1954, Sen. Hatch stated that: "[O]ur critics' real problem is not with the overall bill, but with the U.S. Supreme Court . . . All we did in our bill was to codify the 'law of the land.' The bill codifies and clarifies recent Supreme Court standards as to what constitutes a 'taking' of private property." 142 Cong. Rec. S7888 (July 16, 1996). The Senate Judiciary Comm. Majority Report stated that the "most important function" of the compensation portion of S. 605 "is to codify the substantive standards that apply to takings." S. Rep. No. 104-239, at 23. Finally, a July 1996 "Dear Colleague" signed by Senator Hatch but bearing the initials "LB," states that S. 1954 simply "codifies and clarifies recent Supreme Court standards as to what constitutes a 'taking' of private property . . .."

In fact, the Supreme Court's constitutional rulings have unanimously rejected the S. 605 and S. 1954 approach of requiring payments for laws that reduce the value of any affected portion of property by a certain percentage. As you and Senators Biden, Kennedy, Simon, Kohl, Feinstein, and Feingold explained at the time, the standard set by S. 605 "quite radically departs from over a century of constitutional thinking in this area, and poses a direct threat to the property, health and safety interests of most Americans." Indeed, as you and the other Senators accurately pointed out, the scope of S. 605 was "breath-taking" because it posed a threat to, among other things: FDA bans on dangerous drugs; ADA requirements to make restaurant restrooms wheelchair accessible; FCC limits on "dial-a-porn" to protect children; EPA pollution control laws; and Interior Department limits on coal mining. S. Rep. No. 104-239, at 54, 56-61 (minority views).

To achieve compliance with almost any federal law, these takings "compensation" bills would have required windfall payments from taxpayers to corporations and developers. As federal agencies documented at the time, the result would have made it too expensive to enforce a wide range of protections for children, workers, neighboring property, communities, the environment, and national security.

The unsuccessful 105th Congress legislation that Mr. Block refers to as "codifying . . . ripeness standards" also attempted to overturn Supreme Court holdings. H.R. 1534/ S. 2271 flatly contradicted the Court's rule requiring that those with takings claims against local governments first seek compensation through State courts before bringing a federal court takings claim. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194 n.13 (1985). The Court stated plainly that this State compensation requirement is based on "the nature of the constitutional right," leading many members of the Senate Judiciary Committee to oppose the bill "because it is very likely to be found unconstitutional." S. Rep. No. 105-242, at 31 (1998) (minority views).

Mr. Block's nomination raises very serious issues. Mr. Block's nominee questionnaire responses indicate that he continues to believe that the extreme bills that he was "responsible for" would have simply codified constitutional standards, and would rule on constitutional takings claims in accord with those standards. In fact, those bills violated constitutional compensation and ripeness standards and threatened innumerable federal and local laws. They were strongly opposed by Republican and Democratic Senators, President Clinton, bipartisan groups of State Attorneys General, legal scholars, and national organizations representing State and local government, labor, civil rights, the environment, religious denominations, taxpayers and many others.

Any hearing held on Mr. Block's nomination should be full, open and announced with ample time for a detailed consideration of his views on takings law and the effect his confirmation would have on critical federal protections. The Judiciary Committee should invite academic and other opponents of takings bills to testify. A close scrutiny of Mr. Block's understanding of, and record and views on, takings is particularly needed because the Court of Federal Claims has exclusive jurisdiction over most takings claims against a very broad range of federal safeguards.

Thank you for consideration of our views. For more information, please contact Glenn Sugameli, Senior Legislative Counsel, Earthjustice, at 202-667-4500.

Sincerely,

Vawter Parker
Executive Director
Earthjustice Legal Defense Fund

Rodger Schlickeisen
President
Defenders of Wildlife

Nan Aron
President
Alliance for Justice

Barbara Jean Polo
Executive Director
American Oceans Campaign

Jeff Soule
Director of Policy
American Planning Association

Ann C. Mills
Vice President For Conservation
American Rivers

Paul Schwartz
National Policy Coordinator
Clean Water Action

Jacqueline Savitz
Executive Director
Coast Alliance

Doug Kendall
Executive Director
Community Rights Counsel

Alyssondra Campaigne
Legislative Director
Natural Resources Defense Council

Brock Evans
Executive Director
Endangered Species Coalition

Kenneth Cook
Executive Director
Environmental Working Group

Brent Blackwelder
President
Friends of the Earth

Deb Callahan
President
League of Conservation Voters

Lexi Shultz
Legislative Director
Mineral Policy Center

Kevin Curtis
Vice President of Public Affairs
National Environmental Trust

Jim Lyon
Senior Director for Legislative Affairs
National Wildlife Federation

Julia Hathaway
Legislative Director
The Ocean Conservancy

Robert K. Musil, PhD, MPH
CEO and Executive Director
Physicians for Social Responsibility

Meg Maguire
President
Scenic America

Larry Young
Executive Director
Southern Utah Wilderness Alliance

Steve Moyer
Vice President for Conservation Programs
Trout Unlimited

Linda Lance
Vice President for Conservation Programs
The Wilderness Society

cc. Members of the Senate Committee on the Judiciary

For a related news story from InsideEPA.com, click here.