[Date Prev][Date Next][Date Index]

E-M:/ Environmental Group Sign-on Letter

Enviro-Mich message from Doug Cornett <drcornet@up.net>

>From: Stephan Kline <skline@afj.org>
>To: "'skline@afj.org'" <skline@afj.org>
>Subject: Environmental Group Sign-on Letter
>Date: Mon, 13 Jul 1998 15:05:06 -0400
>X-MIME-Autoconverted: from quoted-printable to 8bit by btc1.up.net id
>I am one of the co-chairs of the Let America Speak Coalition to which you
all belong, and while I lobby on non-profit issues, I also work on issues
affecting judicial independence like S. 2163, the subject of this sign-on
letter.  If you would sign the letter and pass it on to others in your
coalitions, that would be great.
>TO: Environmental Colleagues
>FROM: Stephan Kline, Legislative Counsel, Alliance for Justice
>DATE: July 13, 1998
>SUBJECT: S. 2163, a court-stripping bill
>	The attached sign-on letter and fact sheet for environmental groups refer
to S. 2163, the "Judicial Improvement Act of 1998," a bill recently
introduced by Senator Orrin Hatch (R-Utah). 
>	This bill responds to so-called "judicial activism."  It attempts to
reverse or preclude the outcome of specific cases with which certain
Senators disagree, and it alters the powers and responsibilities of federal
judges.  Many of you signed letters opposing H.R. 1252, the companion to 
>S. 2163 which passed the House in April with two of its worst provisions
removed due in large part to the efforts of the environmental community. 
>	S. 2163 is likely to be marked up by the Senate Judiciary Committee on
July 23, so please sign the attached letter which will be distributed with
the two-page fact sheet to Judiciary Committee members.  
>	Please let me know if you can sign this letter by Monday, July 20 by
phone (202) 822-6070, fax (202) 822-6068, or email - skline@afj.org.
Provide the name and title of person signing for your office, your
organization,  and address.  Thank you.
>Dear Senator:
>	We, the undersigned environmental and conservation organizations, urge
you to vote against S. 2163, the so-called "Judicial Improvement Act of
1998."  This court-stripping bill is a misguided attack on judicial
independence which would prevent the federal courts from ordering
appropriate remedies in environmental cases.
>	By allowing state and local officials to prematurely seek termination of
remedial orders and consent decrees, preventing federal judges from
requiring state and local governments to raise taxes to comply with the
law, and forcing challenges to acts of Congress and state referenda to be
heard by three-judge panels instead of by single federal judges, S. 2163
would hamstring the ability of the federal courts to enforce the law and
safeguard the environment. In addition, S. 2163 would virtually eliminate
state courts as the traditional forum for hazardous discharge and other
environmental disaster cases by expanding federal diversity jurisdiction
over mass tort cases.  
> 	As the attached fact sheet makes clear, the Judicial Improvement Act is
bad public policy and jeopardizes critical protections which have been
adopted to safeguard the environment. If you have any questions, please
contact Sharon Buccino at Natural Resources Defense Council at (202) 289-2406.
>	Sincerely,
>	S. 2163, the so-called "Judicial Improvement Act of 1998" is a misguided
attack on judicial independence which would prevent the federal courts from
ordering appropriate remedies in environmental cases. 
>	Section 3 of S. 2163 would make remedial orders or consent decrees which
bind state or local officials "terminable upon the motion of any party or
intervenor," in as little as two years after their effective dates.  When a
court enters such a relief order, it often finds that the state or locality
has violated the Constitution or a federal statute.  If the government
agrees to a consent decree, it usually recognizes that it has engaged in
unlawful conduct and it is appropriate (and less expensive) to settle
rather than engage in further litigation.  Besides placing onerous and
unnecessary burdens on district court judges who have approved or mandated
necessary remedial plans, this provision would permit states or localities
with proven records of serious violations to avoid responsibility for the
harms they have caused.  
>	.This would jeopardize key environmental safeguards, terminating
long-term consent decrees which seek to reduce toxic emissions at
state-owned incinerators or clean  up hazardous waste dumps.  
>	This provision also applies even if the governmental entity has chosen
not to seek termination of the remedial order but an intervening third
party moves to do so.  
>	.In Vermont, as in many beautiful places, development interests have long
competed with environmental and historic preservation concerns.  Consent
decrees ultimately preserved the traditional features of Vermont while
still flooding the state with tourism dollars. 
>	Although state and local governments are content with this status quo, a
third party could use S. 2163 to terminate these decrees in order to
achieve short-term financial gain.  It is difficult to see how this Act
provides "judicial improvements" by reopening cases resolved long ago.
>	Section 3 would also prohibit a federal court from having the authority
to "order a unit of federal, state, or local government to increase taxes
as part of a judicial remedy."  This language seeks to curtail judicial
authority by overturning part of the Supreme Court's school desegregation
decision in Missouri v. Jenkins, 495 U.S. 33 (1990), which upheld a federal
court's authority to direct government to levy taxes to fund remedies for
educational segregation once it had assured "itself that no permissible
alternative would have accomplished the required task." This power is
appropriately, but rarely, exercised when a governmental agency
consistently violates the law.  
>.In refusing to comply with the District of Columbia's own recycling law a
few years ago, a court should have been able to force the D.C. City Council
"to exercise the power that is theirs to levy taxes to raise funds adequate
to" remedy the situation.  Griffin v. School Board, 377 U.S. 218, 233 (1964).
>	Section 2 of S. 2163 would require challenges to Acts of Congress or
state laws adopted by referendum to be heard by three-judge panels instead
of individual federal judges, an inefficient procedure for handling highly
scientific environmental litigation.  When Congress largely eliminated the
use of three-judge district court panels in 1976, it described them as "the
single worst feature of the federal judicial system that we have today."
The panels were considered inefficient, requiring three judges to serve as
fact-finders and increasing litigation costs and delays. This section also
provides for unreasonably short time periods for preliminary injunctive
relief to remain in effect. In many situations, particularly considering
the high levels of federal court vacancies and the backlog in civil
litigation, the trial and appellate courts will have an insufficient
opportunity to consider the cases before them, particularly in highly
technical environmental disputes requiring numerous scientific evidentiary
>	Specific examples demonstrate why this provision is bad policy.  One of
the current "property rights" bills under consideration by Congress, the
"Tucker Act Shuffle Relief Act," would vastly expand the power of the U.S.
Court of Federal Claims to hear takings cases along with other challenges
to an agency's authority, and undermine environmental laws by overriding
preclusive review provisions common to environmental statutes.  The takings
bill would also grant broad powers, normally reserved for Article III
courts, to Article I judges who lack lifetime tenure and salary protection,
and it is of dubious constitutionality.  
>	.If enacted, the Tucker Act Shuffle Relief Act will likely be subject to
a  constitutional challenge before a federal judge-a challenge which will
be made more difficult by S. 2163.
>	Unlike every other procedure regulating the courts, Section 2 assigns the
decision-maker for a particular case based on the probable outcome of that
case.  While only a three-judge court may grant injunctions, Section 2
states that "nothing in this subsection shall prevent a district court
judge from denying a request for interlocutory or permanent injunctive
relief." This holds environmental plaintiffs challenging the property
rights bill, who need to persuade a majority of a three-judge panel on the
merits of issuing an injunction, to a much higher burden than defendants
who would only have to convince an individual judge that an injunction is
>.The unfair effects of this provision can also be seen in a challenge to a
state initiative that prioritizes economic development over the state's
obligations under the Endangered Species Act.  A plaintiff challenging this
initiative would have to plead her case to a three-judge panel, while a
plaintiff challenging an identical law passed by a state legislature could
take his complaint to a single federal judge. 
>	Finally, Section 5 would expand the jurisdiction of the federal courts to
include mass tort cases where at least 25 persons have died or incurred
injury, allowing defendants to remove such cases to the federal courts even
if there is incomplete diversity among the parties.  By eradicating the
diversity requirement, this proposal would permit federal court
jurisdiction if only one plaintiff is from a different state than one
defendant.  This would eliminate state courts as the forum for most mass
tort litigation, the outcome desired by backers of this provision.  
>	.A railroad accident causing hazardous materials to be discharged while
injuring a number of people and contaminating the environment demonstrates
the misguidedness of this legislation.  
>Even if ensuing litigation involved a handful of parties (as long as there
were 25 people involved in the original accident), was based on the law of
the state in which the spill occurred, had an amount in controversy less
than the $75,000 required by 28 U.S.C.  1332, and was inherently suitable
for state court, it would be removed to a federal court which corporate
defendants believe are more favorable to their interests.  At a time when
the federal courts are already over-burdened, this is an inappropriate time
to expand their jurisdiction to hear these time-consuming cases.

ENVIRO-MICH:  Internet List and Forum for Michigan Environmental
and Conservation Issues and Michigan-based Citizen Action.   Archives at

Postings to:  enviro-mich@great-lakes.net      For info, send email to
majordomo@great-lakes.net  with a one-line message body of  "info enviro-mich"