The ACRU Blog

Arizona Wins, Tree-Huggers Lose

On 24 June, the Supreme Court decided the case of National Association of Homebuilders v. Defenders of Wildlife. At issue was the interplay between the Environmental Protection Agency and the Endangered Species Act, as they jointly affected a water discharge plan in Arizona, which in turn affected the ability of contractors to build houses. Justice Alito wrote the Opinion of the Court, joined by Justices Scalia, Kennedy and Thomas, and the Chief Justice, approving the Arizona plan. There was a Dissent by Justice Stevens, joined by the other three Justices, and a separate Dissent by Justice Breyer.

The ACLU did not participate in this case. However, several of its political allies filed briefs on behalf of the Defenders of Wildlife.

Under the EPA law, the federal agency initially regulated pollution discharges, however, once a State had met nine specific criteria, the regulation was shifted to a State agency. Under the Endangered Species Act, the Fish and Wildlife Service was to be "consulted" before final EPA action. It was consulted, here, and concluded that the transfer of this power to Arizona would not adversely impact any species.

The tree-huggers, otherwise known as the Defenders of Wildlife, wanted the courts to order that Fish and Wildlife would remain in the decision loop after the transfer. The Ninth Circuit Court of Appeals in San Francisco agreed. The Supreme Court reversed.

Five Justices of the Court concluded that when the law is constitutional, and the parties have obeyed the law, the Court has no further business in the matter. Four Justices of the Court wanted to order more than the law required, because they wanted a particular outcome. Instead of being even-handed judges, they wanted to force the outcome in the direction they preferred.

This case demonstrates why the judicial philosophy of the various candidates for President is a very important factor in electing anyone as President of the United States.