Bench Memos

Enviros Defend Roberts

While MoveOn.Org, the NYT and others suggest John Roberts would be a threat to environmental laws, it is interesting to note that environmentalist litigators take a different view. The folks at Community Rights Counsel (with whom I disagree on quite a bit), regularly litigate in defense of environmental regulations. As detailed in this op-ed by CRC counsel Tim Dowling, their view of Roberts opinion in Rancho Viejo is the same as mine:

Another short-lister — Judge John G. Roberts Jr. of the U.S. Court of Appeals for the District of Columbia Circuit — created a stir by opining on the same issue. In Rancho Viejo v. Norton (D.C. Cir. 2003), the court upheld federal species protections as applied to a real estate developer whose proposed housing project threatened endangered arroyo toads. The panel had little trouble concluding that the commercial housing development fell within the Commerce Clause power.

In dissent from a denial of rehearing en banc, however, Roberts criticized the panel for focusing on the developer’s overall conduct rather than asking whether the specific activity being regulated — harming the toads — is commercial or would substantially affect interstate commerce. According to Roberts, applicable Supreme Court precedent compels the latter inquiry. Moreover, he viewed the panel’s approach as in tension with the Fifth Circuit, which used a much different rationale in upholding federal species protections.

Needless to say, Roberts’ dissent was not well-received by the environmental community. But it should be viewed in context. He did not express a position on the constitutionality of single-state species protections, but instead insisted that additional review would “afford the opportunity to consider alternative grounds for sustaining” them. And it is indisputable that federal appellate courts have adopted different rationales in upholding these protections, a relevant consideration in deciding whether to grant a full-court rehearing.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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