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The environmentalist contribution to the anti-Owen campaign is spearheaded by Earthjustice, the green litigation shop formerly known as the Sierra Club Legal Defense Fund and a "coalition partner" of the Alliance for Justice's Judicial Selection Project. On July 16, Earthjustice released a letter to the Senate signed by representatives of eleven environmental groups expressing "serious concerns" about Justice Owen. Among those endorsing the letter were Defenders of Wildlife, Friends of the Earth, Natural Resources Defense Council, U.S. PIRG, and the Wilderness Society. The letter charged that Justice Owen has sought to "elevate the rights of polluters over the rights of neighbors and the public, restrict the public's access to public information, and limit common law remedies for injured consumers." In support of this claim, the letter (and the Earthjustice website) points to three of Justice Owen's opinions from her seven years on the Texas supreme court that raise "troubling issues." Exhibit A in the environmental attack on Owen is her dissent in FM Properties Operating Co. v. City of Austin, a constitutional challenge to portions of the Texas water code. In FM Properties, the city of Austin challenged provisions of the code allowing landowners to obtain exemptions from municipal water-quality regulations by creating "water quality protection zones" that met state-mandated requirements. By a vote of 6-3, the Texas supreme court found the law unconstitutional because "it unconstitutionally delegates legislative power to private landowners." Justice Owen and two other justices rejected this characterization. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts. Because she did not go along with the majority's decision to invalidate the challenged statute, Justice Owen is accused of "protecting the special interests" and turning her back on environmental protection. Owen's FM Properties dissent was also highlighted by the Alliance for Justice as evidence that Justice Owen is a "judicial activist." This is a curious accusation given that Owen followed long-standing doctrine that, if possible, courts should interpret statutes so as to preserve their constitutionality. Indeed, Owen may be the only judicial nominee labeled an activist for not striking down a statute. The majority's rationale in FM Properties relied upon the non-delegation doctrine, which limits the ability of legislatures to delegate policymaking to other branches of government or private entities. The doctrine is virtually a dead letter at the federal level, though it is still applied in some states. Thoughtful legal scholars, such as former environmental legal litigator David Schoenbrod, may defend the doctrine on constitutional grounds, but environmentalist groups consider it an anathema. When a federal court relied upon the non-delegation doctrine to strike down federal clean-air standards in 1999, environmental activists had a collective cow. Yet Justice Owen's refusal to use the doctrine to strike down a statute limiting local regulation is the basis upon which her opponents now label her an "activist" judge who caters to "special interests." Environmentalist groups may have had good reasons to dislike the legislation in question, but not all bad policy decisions are unconstitutional. Another case to provoke environmentalist ire is In re City of Georgetown, in which Justice Owen wrote the majority opinion preventing the release of a government report under the Texas Public Information Act because the report was covered by attorney-client and work-product privilege. Writing for six members of the court, Owen noted that Texas law explicitly protects government documents prepared in connection with litigation, and that the Public Information Act explicitly exempts information "expressly confidential under other law." Three justices dissented from Owen's opinion, interpreting the Public Information Act to require broader disclosure by government agencies. While there is room to dispute Owen's interpretation of the statute, her opinion was hardly radical or "activist." In holding that attorney work-product is covered by the exemption, Owen relied upon relevant supreme-court precedent and utilized traditional tools of statutory construction to produce an eminently sensible result. Much the same can be said of the third case to place Owen in environmentalist cross hairs. In Hyundai Motor Company v. Alvarado, Owen dissented from a decision finding that automaker compliance with relevant federal motor-vehicle-safety laws and regulations did not preempt state law product-liability suits. Specifically, Alvarado sued Hyundai claiming that the lack of a lap belt made his car "defective," even though the vehicle met all federal seatbelt standards at the time it was built. Justice Owen and three of her colleagues believed that the federal laws preempted Alvarado's claim. The five justices in the majority did not. As with In re Georgetown, reasonable minds can differ as to the merits of the preemption arguments at issue, but it is difficult to claim Owen's opinion was extreme, radical, or otherwise out of the mainstream. Most federal appellate courts to consider the issue had found preemption, as had several other state high courts. Indeed, when the U.S. Supreme Court considered a similar claim in 2000, it found the tort actions preempted as well. The majority opinion, adopting a view akin to that espoused by Justice Owen, was authored by noted conservative activist Justice Stephen Breyer. Owen is not the first judicial nominee to be targeted by environmentalist groups, and she is unlikely to be the last. Last year, the Natural Resources Defense Council joined the Alliance for Justice and Community Rights Counsel (CRC) in publishing "Hostile Environment," a report on "how activist justices threaten our air water and land." CRC has spent several years criticizing independent judicial seminars that broach economic subjects, and has sought to make attendance at such seminars an issue in judicial nominations. Working with Earthjustice, CRC further sought to inject environmental concerns into the confirmation fights over Judges Charles Pickering and D. Brooks Smith, the latter of whom was confirmed despite broad activist opposition. A fourth nominee in the environmental crosshairs is Laurence Block, a longtime staffer for Senator Orrin Hatch on the Judiciary Committee, nominated by President Bush to the Court of Federal Claims. Environmental groups are targeting Block because he worked on property-rights legislation for Senator Hatch, something environmentalists claim makes Block "extreme." The truly extreme position, however, is environmental activists' resistance to enforcing the Fifth Amendment's admonition that the government not take private property for public use "without just compensation." A Judiciary Committee vote on Justice Owen's nomination is expected in September when the Senate returns from its August recess. Given the narrow split on the committee, Justice Owen's fate may depend on whether a single Democrat is willing to support her nomination. Thus, the involvement of environmental groups could make the difference. In their attacks on Justice Owen, environmentalist groups have joined the Alliance for Justice and People for the American Way in characterizing a principled conservative nominee as "activist" and "extreme." Such overwrought characterizations do not accurately portray Justice Owen's record in environmental cases. Indeed, if after 14 months of research environmentalist groups could only find these three opinions to criticize from Justice Owen's seven years on the bench, one has to wonder what all the fuss is about. — Jonathan H. Adler is an assistant professor at Case Western Reserve University School of Law and an NRO contributing editor. |
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nvironmental-activist
groups have joined the effort to derail embattled judicial nominee Priscilla
Owen. Owen is currently a justice on the Texas supreme court. President
Bush nominated Justice Owen to the U.S. Court of Appeals for the Fifth
Circuit in May 2001. Fourteen months later, Owen received a hearing from
the Senate Judiciary Committee. In the meantime, activist groups researched
Owen's record and launched a well-coordinated campaign to scuttle her
nomination.
