Reply #10: troubling dissents: constitutionality of Endangered Species Act

[G_j]

http://www.pfaw.org/pfaw/general/default.aspx?oid=13523


DC Circuit Decisions & Federal Circuit Decisions

John Roberts, DC Circuit

In the short time since he was confirmed by the Senate in May 2003, Judge Roberts has issued troubling dissents from decisions by the full D.C. Circuit not to reconsider two important rulings. These included a decision upholding the constitutionality of the Endangered Species Act as applied in a California case and a ruling against Bush Administration efforts to keep secret the records concerning Vice President Cheney's energy task force.


Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003): constitutionality of Endangered Species Act

This case involved a real estate development company's contention that the application of the Endangered Species Act to its construction project in California was an unconstitutional exercise of federal authority under the Commerce Clause. After the United States Fish and Wildlife Service determined that the company's project "was likely to jeopardize the continued existence of the arroyo southwestern toad," placed on the Endangered Species List by the Secretary of the Interior in 1994, the company filed suit "ather than accept an alternative plan proposed by the Service." Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003). The district court dismissed the company's complaint, and a panel of the D.C. Circuit unanimously upheld the dismissal (323 F.3d 1062), following prior D.C. Circuit precedent upholding congressional authority under the Endangered Species Act. By a vote of 7-2, the D.C. Circuit denied a petition for rehearing en banc (by the entire court) of the panel's ruling.


The only dissenters were Judges Roberts and Sentelle. All of the other Republican-appointed judges on the court - Judges Ginsburg, Henderson, and Randolph - joined the court's Democratic appointees in voting to deny rehearing en banc. The panel's opinion upholding the authority of Congress under the Commerce Clause in this case not only followed D.C. Circuit precedent, but was also consistent with a recent ruling of the Fourth Circuit in Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). The opinion in that case upholding the authority of Congress to protect endangered species on private lands was written by Judge J. Harvie Wilkinson, a conservative Republican-appointee.

Roberts's dissent in Rancho Viejo strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case. By his vote to rehear the case and thus potentially reverse the district court, Roberts indicated that he may well be ready to join the ranks of such right-wing officials as Judge Michael Luttig (who dissented in Gibbs) and Alabama Attorney General William Pryor - nominated by President Bush to the Eleventh Circuit - in their efforts to severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.


In re: Richard B. Cheney, Vice President of the United States, 2003 U.S. App. LEXIS 18831 (D.C. Cir. 2003), cert. granted, 2003 U.S. LEXIS 9205 (2003): secrecy of Vice President Cheney's energy task force

Judge Roberts was one of the dissenters in the court's 5-3 denial of a petition for rehearing en banc (with one judge not participating) filed by the Bush Administration in its continuing efforts to avoid releasing records pertaining to Vice President Cheney's energy task force. This ruling came in litigation brought by Judicial Watch and the Sierra Club charging that the Vice President's task force had violated federal law by not making its records public. The court's ruling marked "the fourth time a judicial panel has rebuffed efforts to keep the information from the public." Carol D. Leonnig, "Energy Task Force Appeal Refused," Washington Post (Sept. 12, 2003). At the Administration's urging, the Supreme Court has agreed to review the case; a decision is expected by the end of June 2004.