Politics & Policy

Endangered Roberts?

Greens eye the Supreme Court nominee.

Some loud voices on the Green Left–the Sierra Club, Earthjustice, and Friends of the Earth–are going after John Roberts. Listen in. Their yelling reveals a lot about the current state of the environmental movement. It also indicates what President Bush should expect in spades if in the future he nominates a judge with a longer environmental record.

The bone of contention that the enviros are currently gnawing at is Roberts’s minority opinion in Rancho Viejo v. Norton. The Sierra Club complains that Roberts “strongly implied that Congress does not have the Constitutional authority to protect certain species under the Endangered Species Act.” Earthjustice (formerly the Sierra Club Legal Defense Fund) warns that in “a key environmental case, Judge Roberts questioned the constitutionality of Endangered Species Act safeguards.” Based on that, Earthjustice sent out an e-mail claiming that “much of what we know about Judge Roberts is quite troubling.” And Friends of the Earth claims that a “recent case dealing with the Endangered Species Act raises troubling concerns about Robert’s commitment to upholding Congress’s constitutional right to pass laws that protect our air, land and water.”

Rancho Viejo v. Norton really shouldn’t rate high in propaganda value for Roberts’s opponents. The 2003 case concerned a land developer, Rancho Viejo, whose plans to build residential housing near San Diego were thwarted because they threatened the habitat of the Southwestern Arroyo Toad, a species protected by the Endangered Species Act (ESA). Contrary to the Sierra Club, Judge Roberts never said Congress had no power to “protect certain species.” Rather, because the Constitution permits Congress to regulate interstate commerce, Roberts questioned whether Congress has the authority to regulate a species of toad that lives only in California.

Here’s what’s pertinent: (1) This case concerns whether amphibian rights are more important than a homebuilder’s, and (2) Judge Roberts raised reasonable questions about the limits of federal power. Does that make Roberts a right-wing nut job? Or does it say something about the environmental groups? Don’t expect the mainstream media to give you the right answer.

It’s clear that environmental groups have never regarded the ESA simply as a legal process to protect species. For them it’s the enforcement mechanism of their philosophical convictions, in particular of an ideology called “Deep Ecology.” Deep Ecology is the construct of a Norwegian philosopher, Arne Naess, who carried to extremes the not unreasonable assertion that all living things have an intrinsic worth. But here’s what Naess said: “The right of all forms [of life] to live is a universal right which cannot be quantified.” He also said, “No single species of living being has more of this particular right to live and unfold than any other species.”

Proponents of Deep Ecology like to claim that they value the richness and diversity of all life. But in fact they value some lives less than others. Naess’s 4th Principle of Deep Ecology states, “The flourishing of human life and cultures is compatible with a substantial decrease of the human population. The flourishing of nonhuman life requires such a decrease.” Put aside the doublespeak–that human life can flourish and decrease at the same time is, as Orwell said, something so strange that only an intellectual would believe it. What’s more significant is the practical effect of what Deep Ecology advocates. The 6th principle states that society must change polices “to effect basic economic, technological structures. The resulting state of affairs will be deeply different from the present.” Moreover, that state of affairs will be one in which humans appreciate “life quality” rather than a “higher standard of living.”

This sort of wooly thinking has so infested the environmental movement that there is now a foundation grant-maker, the Foundation for Deep Ecology, established in 1990 by former Esprit clothing CEO Doug Tompkins to support its projects. In fiscal year 2004 the Foundation had $48 million in assets and gave out just over $1.1 million in grants. Tompkins recalls having a “powerful epiphany” after reading about Deep Ecology. He laments the time he wasted in corporate America because he wasn’t “out there with the Earth Firsters, where my heart actually longed to be.” (Since 2000, the foundation has given $109,000 to Friends of the Earth, $35,000 to the Sierra Club Foundation, and $5000 to Earthjustice.)

The ESA is the perfect vehicle for imposing on San Diego developers the tenets of Deep Ecology. With good reason, Earthjustice calls ESA “arguably the strongest of the environmental laws.” Because of the way it is set up, ESA lets environmental groups file lawsuit to put a stop to anything that could qualify as human activity (and that’s a lot) that might endanger a designated species. And what better way to decrease human population (or at least halt its growth) than to put tracts of land off-limits and prevent people from earning a living.

A Nexis search reveals that Friends of the Earth has been party to three lawsuits involving ESA since 2002; the Sierra Club has been party to eight in just the last year. But they are pikers compared to Earthjustice, which has filed nearly 50 suits under the Endangered Species Act since the late 1990s. Earthjustice often forms partnerships with the Center for Biological Diversity, another recipient of grants from the Foundation for Deep Ecology ($115,000 since 2000). The center has filed almost 60 suits since the late 1990s. And what species are protected? Yes, there are suits to protect whales and birds, but others aim to save the St. Andrews Beach mouse, the Douglas County pocket gopher, and the Madla Cave Meshweaver spider.

These lawsuits target mining, oil, and gas exploration, timber cuts, fishing, roads, livestock grazing, housing developments, golf courses, country clubs, pesticides, cell-phone towers, and biopharmaceutical crops. Given ESA’s potent powers to thwart almost anything if only you can find a nearby species, it’s little wonder that environmentalists raise warning flags over Roberts’s modest objections.

Judge Roberts should consider himself fortunate that he does not have a more extensive environmental record. It’s not hard to imagine the commercials green groups would run: warm, cuddly little critters quivering before the Bush nominee. You can hear Ted Kennedy, “In [insert nominee’s name here]’s America, sea otters will be hunted down with wanton abandon and taxidermists will mount bald eagles. State parks will be strip-mined and beaches overrun with oil rigs. Millions more children will suffer.” They always do.

Now that Hillary Clinton is counseling Democrats to tone down their rhetoric over abortion rights, the Left will be searching for new weapons to beat up on conservative judicial nominees. Look for environmentalists to nominate the Endangered Species Act in the future.

David Hogberg is GreenWatch editor and Tamara Kafkova is a research assistant at Capital Research Center.


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