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Supreme Court Nominee John Roberts's Controversial Environmental Law Dissent:
It Reveals Him As An Extreme Proponent of "States' Rights" Federalism, To the Detriment Of Endangered Species

Monday, Aug. 01, 2005

Supreme Court nominee John Roberts is a judge on the U.S. Court of Appeals for the D.C. Circuit - an immensely influential Circuit Court. One of the few controversial opinions Judge Roberts has written while serving on that court, is his dissent from the denial of rehearing in the case of Rancho Viejo v. Norton.

In this column, I will analyze the initial decision in the case, as well as Roberts's dissent, which states the reasons he disagreed with its holding.

I will argue that Roberts, though he cites U.S. Supreme Court precedents in favor of his view, goes far beyond these precedents, venturing into the very kind of judicial activism conservatives like him most condemn. Ultimately, his dissent is so extreme as to, in effect, reject the protections of the federal Endangered Species Act.

D.C. Circuit Procedure: The Procedural Place of Roberts's Dissent

Due to its geographic location, as well as a number of statutes specifically granting it jurisdiction over government-related cases, the D.C. Circuit is tasked with interpreting many federal laws, and, in effect, overseeing the actions of many federal agencies. It is often referred to as the "second most powerful court" in the United States, behind the Supreme Court.

A nominee's career while serving as a judge on the D.C. Circuit is therefore, a relatively good predictor of what his career while serving as a justice on the Supreme Court would be like.

Relatively good, but not perfect: A D.C. Circuit judge is bound to obey U.S. Supreme Court precedent, but a U.S. Supreme Court Justice can vote for the overruling of that precedent.

So a judge who is a precedent-follower on the Circuit bench, can turn into an eager overruler on the Supreme Court - decimating the very precedents he used to scrupulously enforce.

While D.C. Circuit judges must obey Supreme Court precedent, they can also vote for the overruling of the Circuit's own precedent. Here's how this works:

Initially, a case on appeal to the D.C. Circuit is decided by a three-judge panel drawn from all the Circuit's judges. That panel cannot overrule Circuit precedent, because it does not include all the judge of the Circuit.

Next, the entire set of the nine active judges on the Circuit can decide whether to call for the case to be reheard by all nine.

Judges vote yea or nay; Judge Roberts, in Rancho Viejo v. Norton, voted yea, but the majority of the Circuit voted nay, so the case was never reheard by all nine judges.

After learning that rehearing was denied, Judge Roberts and another judge - Judge Sentelle - each wrote a separate dissent, explaining why he thought rehearing should have been granted.

If the entire Circuit decides to rehear a case, then it can overrule its own precedent, if it so chooses. So the rehearing panel would have had a much freer hand than the original three-judge panel in deciding how to resolve the case.

Politically-divided Circuits - such as, notoriously, the Ninth Circuit, which includes California, and, to perhaps a lesser extent, the D.C. Circuit - tend to do a lot of rehearing. More politically-unified Circuits do not.

The Issue: Applying the Federal Endangered Species Act in California

The issue before the three-judge panel was whether, under past Supreme Court and D.C. Circuit precedent, the U.S. Fish and Wildlife Service (FWS) could forbid a California developer from constructing a San Diego housing development the way it had planned to do.

The FWS had found that if the development proceeded as planned, it might make an endangered species - the arroyo Southwestern toad-- extinct. (The toad has previously been properly listed as endangered by the Secretary of the Interior.)

Importantly, the FWS did not want to forbid the development itself. Instead, it wanted to compel the developer to use fill dirt that came from off-site, not from the area on the developer's property where the frogs lived, or from the adjoining streambed that marked the edge of the property. The 52-acre housing site, however, could still be used for the housing development.

Obviously, using offsite fill dirt would have been more expensive and inconvenient for the developer. So the developer brought suit, arguing that the federal agency's restriction on this California real estate project, which had been mandated pursuant to the federal Endangered Species Act, violated the U.S. Constitution's Commerce Clause - which sets out one of Congress's enumerated powers, the power to regulate interstate commerce - and thus intruded too far into the proper regulatory role of the States.

A Major Reason Why The Case Was Easy for the Panel: Binding Circuit Precedent

The three-judge panel's decision was unanimous (though Chief Judge, Douglas Ginsburg - once a U.S. Supreme Court nominee himself - concurred separately). That's not very surprising, for there was D.C. Circuit precedent that was directly on point, and as noted above, a three-judge panel can't overrule past Circuit precedent; only an en banc panel (a panel of the full circuit) can do that.

The precedent was the 1997 D.C. Circuit decision in National Association of Home Builders v. Babbitt. There, the court upheld - despite a Commerce Clause challenge -- the FWS's determination that construction of a California hospital could not proceed, because it would harm another endangered species, the Delhi Sands Flower-Loving fly.

The National Association of Home Builders (NAHB) decision was directly parallel to Rancho Viejo: Both involved California construction that was affected by a FWS order meant to protect an endangered species. Also, in both cases, the developer said the Endangered Species Act, as applied to the local situation, went beyond Congress's constitutional power to regulate interstate commerce.

Strikingly, both cases also involved creatures that themselves never travel interstate. Apparently, what these toads and flies do in California, stays in California - literally. Their movement radius is too small for them to ever leave.

Should Two Interim Supreme Court Decisions Have Led to a New D.C. Circuit Rule?

Ordinarily, that would have been the end of the matter: There was binding D.C. Circuit precedent that the panel was bound to apply. But complicating things, here, were two recent Supreme Court decisions that arguably showed the Court was interpreting the Commerce Clause power more narrowly than the Court itself once had - and arguably more narrowly than the D.C. Circuit had, in NAHB.

The decisions were United States v. Lopez, in 1995, and United States v. Morrison in 2000. In each case, the majority included the Supreme Court's most conservative justices, Chief Justice Rehnquist, and Justices Scalia and Thomas. (It also included, in both cases, two of the Court's more moderate justices, Justice Kennedy and Justice O'Connor - whom Roberts will, if confirmed, succeed.)

The results, too, were conservative: Lopez struck down the Gun-Free School Zones act of 1990, and Morrison struck down a federal civil remedy for the victims of gender-motivated violence.

To make some admittedly broad generalizations, conservatives do tend to oppose gun control; federal laws governing local crime; and the creation of "hate" crimes that carry a harsher penalty if the criminal's motivation was gender or racial hatred. And these are the very kinds of laws that Lopez and Morrison indicated were beyond Congress's Commerce Clause power to pass.

As noted above, a three-judge Circuit panel must apply both binding Circuit precedent and binding Supreme Court precedent. But Supreme Court precedent trumps if there is a conflict.

So the panel in Rancho Viejo could not just cite the D.C. Circuit precedent of NAHB and stop there. It had to go on to examine if Lopez and Morrison meant it should disregard NAHB.

Because Lopez, in 1995, had preceded NAHB, in 1997, the Circuit had already decided that Lopez and NAHB did not conflict. But when Lopez was combined with the newer, 2000 precedent of Morrison, did a conflict arise?

The panel unanimously thought not. It held, instead, that all three precedents could co-exist.

But Judge Roberts thought there was a conflict. And that brings us to the question of what we can learn from his dissent to the denial of rehearing.

Learning From Roberts's Dissent: A Very Narrow Commerce Clause View

To begin, it's important to see why Judge Roberts thought NAHB -and the panel's decision applying NAHB in Rancho Viejo -- conflicted with Lopez and Morrison.

He pointed out that Lopez and Morrison suggest that Commerce Clause analysis must focus on whether the regulated activity affects interstate commerce. And he identified the regulated activity here, as the "take" of the flies in NAHB, or the arroyo toads in Rancho Viejo. ("Take" here is an environmental law term of art: There is a taking of a species of toad, for instance, when, here, a developer's activity threatens the toad's life or destroys its habitat.)

The panel, however, thought the regulated activity here was not just the literal "take" - the aspect of the construction that hurt the frogs or flies, or their habitat. It thought the regulated activity was the "take" seen in context, as part of a larger construction project.

Thus, the question whether interstate commerce was involved in the take, the panel thought, ought to take into account not only the very narrow question of whether interfering with a frog's habitat is connected to interstate commerce, but also the broader question of whether doing so in order to build a real estate complex, is connected to interstate commerce.

Judge Roberts, however, thought that the Supreme Court's decisions in Lopez and Morrison indicated that the Court would not want the "take" to be seen in context, but viewed in isolation.

So if planting a fencepost in the ground, kills a toad or destroys its habitat, then the only relevant activity, in Roberts's eyes, is fencepost-planting - no matter why the fencepost is being put in. So from a Commerce Clause point of view, Roberts, in theory, would see a real estate development's frog-ousting as essentially the same as the frog-ousting performed by, say, a group of trespassing local kids building a fort.

Roberts's commerce clause view isn't just narrow; it's virtually microscopic. (Roberts's view could only be more absurd if he were to claim that the regulated activity is actually the molecules of the fencepost's wood, hitting the molecules of the toads' lilypad.)

In Roberts's own words, this case was about simply "the taking of a hapless toad" - not about a developer's project clashing with the survival of an endangered species.

But of course, this clash was plainly the context of the toad "taking" - and no one could have missed that: neither the developer, nor California environmentalists. Ignoring this clash can only be the result of willful blindness - or the worst kind of lawyerly technicality.

The Problem with Roberts's Microscope-Level Commerce Clause View

Let's hope the Supreme Court didn't mean to take Roberts's ridiculously literal view of what counts as a "regulated activity" in Lopez and Morrison. Certainly, the decisions' language does not suggest it. And the subject matter in those cases was much further removed from interstate commerce, than real estate development is.

The regulated activity in Lopez was carrying guns in schools; in Morrison, it was violence against women. While all states have thriving, legal markets for the activity of commercial real estate developing, one hopes that few have thriving black markets for entrepreneurs specializing in woman-maiming or school-gun-supply.

One can see why the Court might find it a stretch to find a connection between interstate commerce and policing local schools, or protecting women from angry local men bent on violence. But finding a connection between interstate commerce and local real estate development is much simpler.

Local real estate development may use out-of-state labor and/or supplies, and advertise out-of-state, and the real estate market in one state virtually always affects the market in adjoining states; state borders rarely mark terrain and climate change. Meanwhile, a given property may be sold to out-of-state buyers - even permanent out-of-state residents who seek vacation homes.

In sum, except insofar as it is influenced by local and state laws, the real estate market's commerce no more necessarily follows state lines, than the winds do. And the doings of a real estate company - including any "takes" of toads - are logically connected to interstate commerce.

Roberts Would Extend, Not Simply Follow, Lopez and Morrison

Roberts's context-free view of this issue isn't just ridiculously narrow, it's also disturbingly activist. In his controversial dissent, Roberts isn't just innocuously counseling that the D.C. Circuit follow the binding higher-court precedents of Lopez and Morrison - as his opinion suggests. He's counseling that the Court go far beyond Lopez and Morrison to forbid any Commerce Clause goal that isn't itself a commercial purpose.

So when businesses tromp on other businesses, Congress can step in and regulate the activity. But when they tromp on toads, Congress can't - in Roberts's view. Even though it's the businesses who are acting, in Roberts' view, the "regulated activity" - the tromping itself -- is not a form of commerce, and that's all that counts.

So unless the toads start an Internet mail-order business of "Don't Tromp on Me" T-shirts, with which the tromping would interfere, they're out of luck.

This view isn't just conservative; it's completely crazy. It utterly de-fangs the Endangered Species Act when it comes to local construction projects affecting species that live only locally - and, probably, even those species that do not.

Yet endangered toads should not have to become carpetbaggers to be allowed to live in an intact habitat, as Congress wanted them to do. Moreover, even endangered species that do move interstate - unlike the California toads and flies discussed above -- may not create an interstate commerce link, in Roberts's world: Members of endangered species cannot legally be, and typically are not, trapped and sold. So by logical extension of Roberts's view, they may be outside interstate commerce; even if they move from state to state, money probably is not moving with them.

Thus, if the fact that the developers who hurt these species are businesses, doesn't itself establish an interstate commerce link - as Roberts would have it - then there may be no interstate commerce link at all.

The "take" provision of the federal Endangered Species Act would thus, by the logic of Roberts's view, be a dead letter. Species would, if his view prevailed, thus have to be protected state-by-state.

But an American species native to, say, Alaska is not just part of Alaskans' birthright; it's part of the birthright of all Americans. Protecting that species, even if intrastate - like protecting intrastate national parks - is properly Congress's job.

Marginal Among His Republican-Appointed Peers?

A total of eight different, eminent D.C. Circuit judges, over the years, have made clear that they did not think the logic of the Supreme Court's decisions required them to take Roberts's narrow view. Notably, among them were three Republican appointees - including Douglas Ginsburg, an unsuccessful Reagan Supreme Court nominee.

(The eight judges were Judges Henderson and Wald, on the NAHB panel; Chief Judge Ginsburg, Judge Edwards, and Judge Garland on the Rancho Viejo panel; and, apparently, Judges Randolph, Rogers, and Tatel - who either did not favor reconsideration of Rancho Viejo, or, at least, were not moved to enough to dissent from the denial, as Judges Roberts and Sentelle did. Among these, besides Ginsburg, Henderson and Randolph are the Republican appointees.)

Roberts is even more conservative, then, than three of his four Republican-appointee colleagues. And the D.C. Circuit's Republican appointees are known for being quite conservative indeed, so this is no small feat.

That fact - along with the logic of this controversial dissent - provide strong reasons to oppose this nominee. One need not be a liberal to support the preservation of America's precious fauna. After all, three of Roberts's conservative colleagues did just that. Why didn't he?

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is the author of the novel 3. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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