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Environmental Group Cites Partisanship in the Judiciary
Study Shows Divide Between Democratic, GOP Appointees

By Juliet Eilperin
Washington Post Staff Writer
Saturday, October 9, 2004; Page A02

Federal judges appointed by Democratic presidents are several times as
likely as Republican appointees to rule in favor of plaintiffs who sue the
government claiming violations of environmental law, according to a report
issued yesterday by the nonpartisan Environmental Law Institute.

The authors of the study -- which examined 325 judicial rulings between Jan.
21, 2001, and June 30, 2003 -- said the results show the degree to which
ideological polarization over the environment has influenced the federal
judiciary. The nonprofit institute, which researches environmental law but
does not litigate or lobby, focused on cases brought under the National
Environmental Policy Act, a 35-year-old law requiring agencies to assess how
proposed federal policies and programs affect the environment.

Environmental groups -- and sometimes developers -- often challenge federal
actions on the grounds that they violate NEPA, which requires environmental
impact statements and public input for proposed projects.

On the district court level, according to the survey, Democratic appointees
ruled for environmental plaintiffs a little less than 60 percent of the
time, while Republican-appointed judges favored environmentalists 28 percent
of the time. GOP-appointed district judges, on the other hand, sided with
pro-development forces nearly 60 percent of the time while Democratic
appointees ruled for them 14 percent of the time.

The contrast was even starker on the appellate level, where
Democratic-majority panels favored environmental plaintiffs 58 percent of
the time, but GOP-majority panels sided with these groups in just 10 percent
of cases.

District judges selected by President Bush were less sympathetic to
environmentalists' pleadings than those appointed by previous Republican
presidents, the survey found, ruling in favor of environmental challenges 17
percent of the time.

"We were greatly surprised to find the degree of polarization among the
parties," said Jay E. Austin, a senior attorney at the Environmental Law
Institute. "We obviously find that troubling."

Other legal advocacy groups have examined recent environmental rulings by
Bush-appointed judges, but the institute's study marked the first
comprehensive study of decisions by judges selected by presidents dating as
far back as Jimmy Carter.

Todd True, a staff attorney for the environmental litigation group
Earthjustice, who successfully challenged logging projects in the Pacific
Northwest in the 1990s under NEPA, said he had won cases with both
Republican- and Democratic-appointed judges but worried about the tendencies
revealed in the survey.

"An independent judiciary is central to the functioning of our democracy,
and its neutrality needs to be protected," True said.

Several conservative analysts said the discrepancies show that GOP-appointed
judges have a stricter interpretation of the law. American Enterprise
Institute resident scholar Steven Hayward said that in many cases the
government's efforts to comply with NEPA "bear little relation to protecting
the environment" and the study demonstrates "judges are applying some
tougher standards to these NEPA lawsuits."

"If you reported these results in Utah, they would stand up and cheer,"
Hayward said.

C. Boyden Gray, a partner at Wilmer Cutler Pickering Hale and Dorr who was
White House counsel for President George H.W. Bush, said the results were
significant only if as a result of a ruling "some development destroyed an
important preserve on public land out West."