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Judging the Environment judicial nominations photo

A project tracking federal judicial nominations and courts.

Editorials and Opinion


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Trump’s Judges: A Second Front in the Environmental Rollback (Yale Environment 360, 08/28/17)
Elizabeth Shogren: What most unnerves Ayres and other veteran environmental lawyers and legal experts is the unprecedented opportunity President Trump has to fill the federal judiciary with anti-regulatory, pro-business appointees.... Allison Eid, Trump’s nominee for the 10th Circuit Court of Appeals in Denver, wrote a decision in 2012 for the Colorado Supreme Court that overturned a lower court’s ruling and rejected a community group’s request for a hearing about oil and gas drilling permits near a site where a nuclear bomb was exploded deep underground in 1969. Eid also dissented when the Colorado Supreme Court allowed eminent domain of a corporation’s land to be used for public parks and recreation, yet in a dissent in a separate case she ruled that a pipeline company should be able to use eminent domain for a petroleum pipeline.

Will Trump’s Enduring Legacy Be a Right-Wing Judiciary? The president is moving at a rapid clip to put ideological allies on the bench. (Moyers & Company, 08/25/17)
Susannah Jacob: Donald Trump chose Michael Brennan to fill an open seat on the 7th Circuit Court of Appeals. In doing so, he broke with a 38-year-old Wisconsin tradition. For decades, when the 7th Circuit seat meant for a Wisconsin judge opened up, a bipartisan state commission voted on a jointly agreed-upon list of judicial nominees for the president to consider.... Trump went ahead and selected Brennan, a former Milwaukee County judge who is a close ally of Wisconsin’s Republican governor, Scott Walker. In 2011, while serving on a committee to help Walker select state-level judges, Brennan co-authored an op-ed in the Milwaukee Journal Sentinel supporting Republican efforts to block Obama’s nominee to the 7th Circuit Court — a nominee who would have sat in the very seat for which Trump has nominated Brennan.... Republican senators support Trump’s nominees, despite spoken hesitation. For instance, during his nomination hearings, Sen. John Kennedy (R-LA) found 52-year-old judicial nominee John Bush problematic. “I’ve read your blog. I’m not impressed,” Kennedy told Bush. ... Schiff would oversee environmental and agency lawsuits. In the past, he’s accused the Environmental Protection Agency of treating Americans “as if they were just slaves” and recommended selling Yosemite National Park to the Walt Disney Company because they’d “do a damn better job, I think.” He also moonlights as a blogger. In one post, he called Associate Justice Anthony Kennedy a “judicial prostitute”

Flake’s cynical attempt to break up the 9th Circuit Court of Appeals (Arizona Capitol Times, 08/24/17)
Brett Hartl, Guest Opinion: Sen. Jeff Flake chaired a Senate hearing in Phoenix on August 24 to discuss breaking up the 9th Circuit Court of Appeals into several smaller circuit courts. ... it represents one of the more cynical and undemocratic attacks Flake has waged.... Think of this as judicial gerrymandering. ... the only real winners of splitting the 9th would be special interest polluters, corporate raiders and big business, those who typically benefit from far-right policies that favor corporations over workers’ rights, pollution over public health, and extractive industries over the environment. The split fits perfectly within Flake’s agenda. He has introduced legislation to weaken the Clean Air Act and gut the Endangered Species Act, and has voted for every regulatory rollback the Republicans have pushed in the first six months of the Trump administration.

Federal Courts Won’t Save Us if We Don’t Save the Federal Courts: We can’t depend on the Trump administration or on Congress to protect civil rights. So we need to save the courts (Medium, 06/13/17)
The Leadership Conference: As The Leadership Conference has long recognized, the composition of the federal judiciary is a civil and human rights issue of profound importance because federal judges are charged with dispensing justice .... That’s why we fought so hard to block Trump’s Supreme Court nominee, Neil Gorsuch, and why we’re fighting to prevent other extreme Trump rubberstamps from being confirmed to the federal bench. John K. Bush, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit, and Damien M. Schiff, nominated to serve on the U.S. Court of Federal Claims, are both appearing before the Senate Judiciary Committee tomorrow — and neither of them would be the independent and impartial federal judges America needs. Bush and Schiff have a history of blogging on topics that make them unfit to serve on the federal bench .... There’s one disturbing example after another in AFJ’s reports and in our letters on these and many other issues, like environmental rights, property rights, judicial activism, police misconduct, and voter fraud.

President Trump’s New Nominee Called Justice Kennedy a “Judicial Prostitute” (Justice Watch, 05/26/17)
President Trump has nominated Damien M. Schiff, Senior Attorney at the Pacific Legal Foundation and member of The Federalist Society, for a seat on the U.S. Court of Federal Claims. As noted in his Senate Judiciary Questionnaire, in a series of blog posts on both the Pacific Legal Foundation’s Liberty Blog and his own personal blog entitled Omnia Omnibus, as well as in other writings, Schiff repeatedly demonstrates his extreme views and his unfitness to serve as a judge. First, Schiff’s writings include personal attacks on the integrity of a sitting Supreme Court justice, advocates, and progressives. This alone demonstrates he lacks the judicial temperament to serve as a judge. Second, Schiff’s writings demonstrate a blatant disregard for the importance of critical rights and protections relied on by millions of Americans and an extreme devotion to political ideology. Finally, Schiff, who has devoted his career to weakening environmental laws and other legal protections, has made clear that he believes the role of a judge is not to neutrally apply facts to the law. Rather, he has called for a “reinvigorated constitutional jurisprudence, emanating from the judiciary” that would “overturn precedents upon which many of the unconstitutional excrescences of the New Deal and Great Society eras depend.” In achieving that goal, Schiff has called on President Trump to rescind environmental and regulatory reforms and has stated that OSHA is unconstitutional.

How Trump's Supreme Court Pick Quietly Wipes Out Environmental Cases: Green groups may never get their day in court. (Mother Jones, 03/20/17)
Rebecca Leber: Throughout his career, Gorsuch has found creative ways of throwing judicial roadblocks in front of environmental litigation. In many instances, Gorsuch has ruled that environmentalist groups don't have what is called "standing" to bring a case. ... If Gorsuch's logic were applied to other cases, plenty of environmental arguments would be at risk, says Grab. "Judge Gorsuch's approach in this case is potentially worrisome to any organization that might want to challenge an agency's tightening of a regulation as not being comprehensive enough," she notes .... Gorsuch has also attempted to limit the ability of green groups to defend environmental rules in court.

Editorial With this Congress, the Endangered Species Act itself might be endangered (Los Angeles Times, 02/21/17)
"The Endangered Species Act, which played a significant role in saving the bald eagle and the California condor from extinction, is now itself endangered. Were Congress and President Trump to accede to the demands of anti-regulatory zealots and gut the nature-protecting act, it would be calamitous for hundreds of plant and animal species, local ecosystems, and the complex interconnections that sustain the natural world.... the act has helped keep nearly every species added to the list from fading into extinction. Success here should be measured by saves, and by that yardstick, the Endangered Species Act has been a clear success – only 30 species have disappeared after being placed on the list. ... conservationists from the left and right need to pressure Congress to ensure pro-development forces don’t destroy the act under the guise of fixing it."

EDITORIAL: Eyes on the eagles (York Dispatch [PA] , 02/21/17)
"The recovery of the bald eagle is one of the biggest success stories in conservation history, fueled by the federal Endangered Species Act.... The administration of President Donald Trump has many environmentalists concerned about the possibility of gutting the Environmental Protection Agency and the Endangered Species Act in the quest for fewer regulations and higher employment in traditional fuel industries such as oil and coal. Perhaps Trump and new EPA chief (and former EPA critic and lawsuit filer) Scott Pruitt need to spend some time watching the eagle cams at and reading the comments from the birdwatchers keeping their eyes on the pair. Freedom and Liberty are living symbols of this country, and they wouldn't be here if it weren't for the protections laid out by the federal and state governments and the people who worked to return them to their natural habitat in central Pennsylvania. It's our duty to protect them from harm."

LETTER: Donald Trump’s U.S. Supreme Court pick, Neil Gorsuch, would be a disaster for the environment (Las Vegas Review-Journal, 02/07/17)
Rosa Mendoza: In 1984, the U.S. Supreme court voted on the correct side of the law in the Chevron decision, which blocked judges from second-guessing rulings from respected entities such as the Environmental Protection Agency. Judge Gorsuch argued against this environment-friendly ruling, saying that the ruling overstepped boundaries. His opinion reflects a salient truth: He values big business over the environment.

Predicting How Neil Gorsuch Would Rule on Environmental Issues: If he’s ever confirmed by the U.S. Senate (Legal Planet: The Environmental Law & Policy Blog, 01/31/17)
Prof. Ann Carlson: Given his stated conservative judicial philosophy and his supposed commitment to “textualism,” though, it seems safe to be that he’ll be a reliable conservative vote and a foe of environmental protection most of the time.

Why You Should Care: Attorney General Nominee (Defenders of Wildlife Blog, 01/10/17)
Hillary Esquina: The Trump Administration’s Attorney General will play a central role in the enforcement of our federal wildlife and environmental laws over the next four years. The policies and decisions of the Attorney General will have a direct impact on the protection of endangered and threatened species, our national forests and wildlife refuges, and efforts to combat climate change.... Senator Sessions’ record on climate change and support of legislation to weaken federal environmental laws including the Endangered Species Act suggests that as Attorney General he will undermine efforts to address climate change and weaken enforcement of federal laws to protect endangered and threatened species.... Senator Session’s record demonstrates a disregard for protecting wildlife and public lands.

Block Jeff Sessions for Attorney General (American Constitution Society Blog, 12/12/16)
Guest Post by Erwin Chemerinsky: The Civil Rights Division of the United States Department of Justice is responsible for enforcing laws prohibiting race discrimination in voting, employment, housing and policing. Nothing in Sessions’ career offers hope that he would be other than a disaster in doing so.... The Justice Department, through its Environment and Natural Resources Division, plays a key role in enforcing federal environmental laws. Here, too, Sessions has a terrible record.

Red wolf a winner [Editorial] (News & Observer [NC], 10/02/16)
BY THE EDITORIAL BOARD: "Federal District Court Judge Terrence Boyle isn’t given to squishy rulings on controversial issues, and he is hard to pigeonhole as a predictable down-the-line conservative. His decisions are clear and straight-ahead, case by case. So in temporarily restricting the federal government’s wish to take red wolves from private property in North Carolina and restrict them to a federal wildlife refuge and adjacent property in Dare County, Boyle signals that he believes the conservation groups that have battled the U.S. Fish and Wildlife Service are likely to prevail in the long term. Boyle noted that the population of red wolves in the wild has diminished, to a point where he wrote, “Such rapid population decline has been described as a catastrophic indicator that the wild red wolf population is in extreme danger of extinction.”"

Editorial: Closer look needed at state’s policy on killing wolves (Herald [WA] , 09/22/16)
By The Herald Editorial Board: "Gray wolves are listed as endangered under the Endangered Species Act, but in Washington only those west of U.S. 97 are protected.... Robert Wielgus, who is director of Washington State University’s Large Carnivore Conservation Lab and is conducting a study that is tracking collared cattle and wolves, told the Times that the predations by the Profanity Peak pack were predictable and avoidable. In contrast, there has been no loss of livestock among the ranchers who are participating in his study, and none among other ranchers following the state’s protocol. Wielgus also noted that wolves are not the leading threat to cattle; more are killed by logging trucks, fire and lightning strikes.... Better adherence to its protocol should be discussed, but so, too, should there be some discussion that recognizes that ranchers’ use of federal grazing lands within national forests ought to respect the dangers that are present, whether those are wolves, fire or logging trucks.... Elimination of a species that helps to balance the forest ecosystem would turn the Colville and other such public lands into a glorified feed lot."

OUR VIEW | Encouragement for the Elwha [Editorial] (Kitsap Sun [WA], 09/17/16)
By the Kitsap Sun editorial board: "The Olympic Peninsula's restored river continues to demonstrate the resiliency of nature, this week with the news that steelhead trout and sockeye salmon are being seen in the Elwha River in places where they haven't been observed in a century. It's evidence the historic removal of two dams is working as more species adapt and migrate up the free-flowing river.... In early 2015, scientists found candlefish at the mouth of the river, after 60 years without seeing the threatened species of smelt. That was a great signal for salmon recovery"

Save the red wolf [Editorial] (News & Observer [NC], 08/31/16)
EDITORIAL BOARD: "A deadline is coming for red wolves, an endangered species. The deadline is the fall, when the U.S. Fish and Wildlife Service will announce whether it will continue a red wolf recovery program. Continuing would mean protecting the species through regulation and hoping to increase the population over time. Ending the program? That would in effect be abandoning the wolves and allowing the species to go extinct. The latter choice is unacceptable. North Carolina has a particular interest, as it has the distinction of being home to all of the red wolves now in the wild .... coyote hunts – during which red wolves were mistakenly shot – cut that population dramatically.... Nearly half a million Americans signed a petition last month calling for Fish and Wildlife to work to recover the population. That support comes from around the United States. When a rare species dies, a part of American history goes with it. In this case, North Carolina is part of that history. And, as one conservation scientist noted, it’s shameful to think the Fish and Wildlife Service would allow the red wolf to go extinct in the wild, when there are ways to save it."

End logjam of gridlock, fill federal court slots: Where We Stand [Editorial] (Orlando Sentinel [FL] , 08/21/16)
"An emergency exists in Florida's federal court system and the group responsible for fixing the problem — the U.S. Senate — just yawns and shrugs its collective shoulders. .... And it's not just Florida that is suffering. More than 10 percent of the nation's 677 federal district judgeships are vacant, awaiting approval by the Senate. In Florida, five of 37 district judge slots, 14 percent, are unfilled. ... With a smaller number of judges taking on the growing responsibility, workloads increase, delays lengthen and costs rise.... "It's like an emergency room in a hospital," said Southern District Chief Judge Federico Moreno. " ... Eventually you burn out."... justice delayed is justice denied. It's now so bad in Florida that four of the vacancies have been declared "judicial emergencies." ... in states that have both a Republican and Democratic senator, it is easy for one of them to stop such a vote, which in Florida is what Republican Sen. Marco Rubio did on Southern District nominee Mary Barzee Flores"

Our View: Beware of congressmen in pro-wolf clothing (Arizona Republic, 08/17/16)
Editorial board: "Beware of politicians in wolves’ clothing. Two congressional efforts to seize control of the Mexican gray wolf reintroduction program may pretend to be wolf-friendly. They aren’t. The first is being pushed by Arizona Republican Rep. Paul Gosar and New Mexico Republican Rep. Steve Pearce. Both previously have sought to kick the Mexican gray wolf off the endangered-species list. Now, they are behind an amendment to the Interior Department appropriations bill that would defund the federal wolf-recovery effort. Pearce says states could do a better job.... The species is 97 times better off. And that’s because of a federally run effort that is guided by the federal Endangered Species Act, which established species diversity as a national value.... Ranchers and hunters have legitimate concerns, but those concerns do not outweigh the larger national goals outlined in the Endangered Species Act.... Yet, in the U.S. Senate, Arizona’s Republican Sens. Jeff Flake and John McCain are pushing an effort that would give states greater influence in decision making about wolf recovery and cap the number of wolves allowed in the wild. This, too, is more about empowering those who oppose wolves than helping recovery. Flake told The Republic’s Loomis that the goal of recovery should be a plan that reflects the will of the states, and cannot be reversed by a federal judge. This is a step backward.... Only after environmentalists won a court settlement did wolf numbers begin to climb, reaching 110 by 2014.... Clearly, wolves need more protection, not less. They need federal protection that is guided by the U.S. Fish and Wildlife Service to reflect the national values outlined in the Endangered Species Act."

Editorial, Aug. 12: Don't cut into public's access to beach: A case before the N.C. Supreme Court could make some parts of the beach off-limits (Wilmington Star-News [NC], 08/13/16)
"Under the state’s longstanding “public trust” doctrine, however, the public has had the right to access and use the dry-sand beach, even if technically someone’s property line extends onto it. Think of it as an easement. A couple at Emerald Isle is suing the town, ... complaining that public vehicles are driving along their dry-sand strip. The creation of this “driving lane,” they argue, constitutes an illegal taking of property without just compensation. ... Towns and counties up and down the coast are arguing that police, lifeguards, other emergency responders and trash trucks need access to this beach area. Driving down on the tidal areas would endanger more marine life.... The N.C. Supreme Court now has the case.... the beach -- all the sandy part, high tide or not -- ought to be open to the public for reasonable, non-destructive use.... If the Supreme Court justices don’t get this point right, our legislators should be ready to act."

Editorial: Extreme partisanship blocks judges, cripples federal courts (Palm Beach Post [FL], 06/27/16)
"Think it’s bad that we have an empty seat on the U.S. Supreme Court? Well, that’s just the tip of the iceberg. Senate Republicans have been so successful in their strategy of obstructing any nominees by President Barack Obama that there are now 89 vacancies in the federal courts system. Waiting to fill those spots are 58 nominees, the limbo for some going back almost a year and a half. That includes South Florida attorney Mary Barzee Flores, whose nomination 16 months ago has been blocked by her own senator, Marco Rubio. ... federal courts are where citizens go to protect important constitutional rights on voting access, the environment and discrimination. It’s where consumers and workers go to hold corporations accountable. With those courts crippled, essential liberties may be eroded."

Senators Put Politics Above People in Obstructing Supreme Court Nominee (Huffington Post, 03/03/16)
Trip Van Noppen, President, Earthjustice: "In every Supreme Court vacancy in the history of our Republic, performing the “advice and consent” role has meant giving genuine consideration to a nominee; evaluating the person’s credentials and qualifications, judicial temperament and experience; and deciding whether the individual nominee should be approved. This has been the case even when a vacancy has occurred during a presidential election year. But apparently not this time. This time Senate Republicans are refusing to do their job. They stand to make American history by becoming the first Senate majority to put playing politics above doing their job by refusing to consider any nominee from the president, no matter how qualified the candidate may be."

Editorial: Habitat expansion key to right whale recovery (Eagle-Tribune [MA], 02/02/16)
"There is reason to be optimistic that the recent move by the federal government to expand the protected habitat of the North Atlantic right whale will protect the endangered species without harming its equally at-risk ocean neighbor, the commercial fishing industry.... The designation is essential to the continued recovery of the species, however, especially as more plans come forward for oil platforms in the south and wind farms and aquaculture in the Northeast. That's a bonus for the fishing industry, which has its own concerns about those endeavors."

Mercury News editorial: Stop the Delta tunnel water madness (San Jose Mercury News [CA], 01/29/16)
"Every serious scientific study of the Delta shows that its health is deteriorating because too much water already is being drained away. State biologists reported this spring that the Delta smelt, the canary in the coal mine for the Delta, is almost extinct. Salmon runs were pathetic this year. The best way for California to meet its water needs is to focus on conservation, recycling and reuse. Agriculture uses about 75 percent of the state's water supply, but only 40 percent of farmers use drip irrigation."

EDITORIAL: Cecil’s revenge: A tragic killing puts lions on the endangered list (Pitt News [PA] , 12/26/15)
"Cecil, the majestic lion shot and killed by a Minnesota dentist in Zimbabwe, was a senseless statistic in the war on Africa’s kings of the jungle. But good has come from the tragedy — amplified concern for these beautiful animals and the importance of added legal protection. To that end, the Obama administration on Monday placed lions in central and western Africa on the endangered species list."

EDITORIAL: The better days of the California condor (San Diego Union-Tribune [CA] , 12/25/15)
"A species doesn’t get much closer to extinction than did the California condor. There were just 22 of these birds in the world in 1983 .... Today, there are more than 420 California condors ... This bird with a scraggly head and a 9-foot wingspan remains endangered. But it is flying higher today than at an time in 30 years."

Editorial Hope for the threatened African lion (Los Angeles Times, 12/23/15)
"After two decades of dramatic decline, African lions are finally getting the status that they, sadly, deserve. The U.S. Fish and Wildlife Service announced Monday that it would list one subspecies of lion as "threatened" under the federal Endangered Species Act and another subspecies — of which only 900 remain in Africa — as "endangered," meaning it is at risk of extinction. The tough new regulations are a welcome move to protect these extraordinary animals, which find themselves under tremendous environmental strain.... Animal welfare groups petitioned the U.S. government to list the animals nearly five years ago."

Mercury News editorial: Drought relief held hostage to trashing the Delta (San Jose Mercury News [CA], 12/02/15)
"Central Valley Republicans want to strip out essential environmental protections for the Delta to quench Big Ag's thirst for more water for questionable orchard crops such as almonds and pistachios. The Bay Area delegation has to fight this -- but there are signs that Sen. Dianne Feinstein will go over to the dark side with House Republicans to in essence destroy the Endangered Species Act. ... Environmentalists, farmers and federal water regulators battled for 19 years to forge a 2006 settlement aimed at restoring year-around water flows to the river and reintroduce salmon and other habitat. It's crazy to undo that effort,"

Editorial: The G.O.P.’s Worst Budget Riders (New York Times, 12/02/15)
"Many anti-environmental riders have been put forward by lawmakers in committees with jurisdiction over energy, water, air quality, public lands and endangered species. Arguably the most serious threat is one that would invalidate a new rule from the Environmental Protection Agency that clarifies which waters are protected under federal law from unrestricted dredging, filling and development.... The White House has said it opposes many of these riders, and has threatened previously to veto attempts to weaken the clean-water improvements. But in 2011, the administration caved on some environmental riders. ... Republicans in the House and Senate appear divided, with the House’s far-right caucus eager for a shutdown if it doesn’t get its way and the Senate leadership desperate to avoid one for fear it would hurt its party’s electoral prospects in 2016. That is an opening for Mr. Obama to do the right thing with harmful riders: Just say no."

Editorial: Due process needed in coastal development cases (Island Packet [SC], 11/18/15)
"A court ruling in Columbia last week could spell trouble for environmental protection all along the South Carolina coast. A decision by Chief Administrative Law Judge Ralph King Anderson III would enable developers to build a half-mile long, steel sheet pile wall, road, sewer lines and water lines to a spit of shifting sand south of Kiawah Island. In doing so, the court lifted an "automatic stay" to halt this foolishness while it is being challenged in court. It only makes sense to hold off on harmful development that may not, in the end, be permitted. Why ruin the environment, only to find out later that it should not have been done? It makes no sense.... Conservationists filed an emergency appeal directly to the South Carolina Supreme Court, which will hopefully restore common sense.... Coastal Conservation League says. "It is a critically important public trust resource providing habitat to a variety of rare, threatened and endangered species."... We urge the public to support the South Carolina Environmental Law Project and the Coastal Conservation League in this fight and the subsequent fight in the legislature. We urge Beaufort County residents to make it clear to local legislators that the "automatic stay" and due process in court are vital to our economy and way of life."

The Endangered Species Act, species it protects are under attack (Bangor Daily News [ME], 11/03/15)
Rep. Roland “Danny” Martin: "During my tenure as commissioner of Inland Fisheries and Wildlife, I learned firsthand what I had always known intuitively: Maine’s wildlife is a valued and wondrous gift that, at the same time, is resilient and fragile. ... The state, however, could only do so much, and without the protections of the Endangered Species Act, or ESA, first passed in 1973, many of our efforts would have fallen short. Unfortunately, the ESA is under attack. Despite its nearly 99 percent success rate of preventing the extinction of listed species, the ESA is under fire as some in Congress continue to try to weaken or eliminate very important portions of the act. For example, there have been multiple legislative proposals introduced to prevent intrastate species — species that can only be found in one state — from being listed under the ESA. This could lead to the extinction of countless species because states do not spend adequate funds on the protection and recovery of imperiled species.... it is more important than ever that Collins and King know the Endangered Species Act — legislation that has protected some of the most vulnerable animal and plant species in our country — is in need of protection itself. Maine and Mainers are counting on them."