Wed, Feb

Congressional Challenges in 2005

(By Buck Parker) With the official start of the second Bush administration, much of the environmental community's focus is on the actions of the Executive Branch.

With the official start of the second Bush administration, much of the environmental community's focus is on the actions of the Executive Branch. However, the expanded Republican majority in both chambers of Congress has the potential to seriously weaken the nation's environmental laws, such as the Endangered Species Act, and severely restrict the public's access to the courts by confirming ideologically extreme judges.

Judicial Nominations

Lifetime federal judges often decide the fate of the laws protecting clean water, clean air, endangered species, and special natural places. When agency officials illegally allow corporations to pollute the air we breathe, or when industry claims that clean water protections are unconstitutional, the American public relies on fair and independent judges to apply, enforce, and uphold the laws that protect our environment. The Bush administration is trying to pack our nation's federal courts with extreme ideologues whose records demonstrate hostility to environmental protections.

For the first time, the importance of protecting the environment has become a major issue in federal judicial selection. While the Senate confirmed more than 200 of President Bush's judicial nominees, Earthjustice and our allies in the environmental community played a key role in encouraging the Senate to block 10 of the most egregious appeals court nominees through filibusters (supporters fell short of the 60 votes needed to end debate). But on the eve of the recent Christmas holiday, the White House announced plans to resubmit nominees who were not approved by the Senate.

With potential Supreme Court vacancies looming, Senate Republican leaders are threatening to "re-interpret" long-standing Senate rules by a simple majority vote and eliminate the ability to filibuster judicial nominees. Even proponents recognize the extreme nature of this proposal -- calling it the "nuclear option" because it would "blow up" the comity needed for the Senate to function on a wide range of issues. As an organization founded to protect the public's right to enforce environmental laws, it is critical that Earthjustice work to protect access to the courts and prevent the confirmation of judges whose records indicate that they are likely to abuse their offices and to undermine the nation's environmental laws. (For the latest, read our "What's New?" page of our Judicial Nominations section.)

The Endangered Species Act

On Capitol Hill, opponents of meaningful environmental regulation have not limited their efforts to undermining the federal judiciary, but have taken to attacking the country's laws head-on. The Endangered Species Act, arguably the strongest of our environmental laws, is at the top of the list of the laws anti-environmentalists would like to gut. The new Congress is considering legislation designed to weaken the Act.

Last session, the House Resources Committee, chaired by Richard Pombo (R-CA), an outspoken critic of the ESA, has passed two bills that attempt to undermine fundamental elements of the statute: using the best available science and safeguarding habitat necessary for the survival of a species. We expect to see these bills, and possibly others, resurface again this year. House Resolution 1662, the Endangered Species Data Quality Act, seeks to undercut the use of the best available science by legislating what kind of science agencies can use, rather than leaving those issues to scientists. It also attempts to delay protective decisions by putting in place a perverse system of peer review that provides for significant political influence. Finally, the bill gives special rights to industry during the formulation of biological opinions, offering opportunities for undue influence in these decisions or outright prevention of them through future Data Quality Act challenges.

The other bill passed out of Chairman Pombo's committee is H.R. 2933, the Critical Habitat Reform Act. This bill seeks to leave to the discretion of the Secretary of Interior the identification and protection of the habitat critical to a species recovery. Additionally, it removes the legal requirement that the Fish and Wildlife Service identify -- and federal agencies protect--the habitat critical to a species' recovery. Obviously, it is impossible to protect endangered and threatened species without preserving their environment, especially now, when continued growth and development has made habitat loss the primary threat to most of them.

As it is written today, the Endangered Species Act works. Protecting the nation's imperiled plants and wildlife is at the core of Earthjustice's mission and our Policy and Legislation staff will continue its work in the halls of Congress and with our allies in the environmental community to prevent either of these bills from becoming law.


Vawter "Buck" Parker joined Earthjustice (then the Sierra Club Legal Defense Fund) as an attorney in 1980 and became the Executive Director in 1998.

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Source: An ENN Commentary