Junketing Judges: A Case of Bad Science
Just how far will corporate lobbyists go to tilt governmental decisions in their favor? Last fall, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Clean Air Act does not require regulating carbon dioxide emissions that are heating up the planet at an unprecedented rate. It turns out that two of the jurists who helped decide the case -- Chief Judge Douglas H. Ginsburg and Judge David B. Sentelle -- attended a six-day global warming seminar at Yellowstone National Park sponsored by a free-market foundation and featuring presentations from companies with a clear financial interest in limiting regulation.
According to documents released by a watchdog law firm last week, Exxon Mobil Corp. and other large businesses contribute to conservative think tanks to help "educate" federal judges through seminars like the one at Yellowstone. At least one major funder of these judicial junkets has said that the D.C. Circuit is targeted because of its jurisdiction over important environmental cases.
Did the Yellowstone trip affect the court's decision in the global warming case? Ginsburg and Sentelle are both strong-minded intellectual conservatives, and it is possible, perhaps likely, that they would have made the same decision if they had stayed home. The Code of Conduct for federal judges does not prohibit attending such seminars -- as long as participation does not "cast reasonable doubt on the capacity to decide impartially issues that may come before them." But if appearances count, then Ginsburg and Sentelle may have fallen short. And Sentelle did violate the law by not listing on his financial disclosure forms the value of the Yellowstone trip.
Many experts in the scientific community agree that global warming is approaching a tipping point where action must be taken to avoid irreversible consequences. But bowing to the Bush administration, the Environmental Protection Agency reversed itself in September 2003 by ruling that carbon dioxide was not subject to regulation under the Clean Air Act. (Administration efforts to soften enforcement rules led several other career officials and me to leave the agency a year before this case.) Convinced that the EPA had misinterpreted the law, a coalition of states and environmentalists sued the agency at the end of 2003, and the case was assigned to the D.C. Circuit.
Sentelle was the deciding vote in the 2 to 1 ruling last fall backing the EPA's decision not to regulate, and he and Ginsburg were part of the 4 to 3 majority on the full court that rejected a request by states and environmental groups to reconsider. The Supreme Court will decide on June 15 whether to hear an appeal.
Well before the issue hit the appeals court, those opposed to carbon dioxide regulation got an early start by persuading Ginsburg and Sentelle to participate in the 2002 Yellowstone conference on climate change, sponsored by the corporate-funded Foundation for Research on Economics and the Environment. As documented by the Community Rights Counsel, a nonprofit judicial watchdog group, FREE has for more than a decade hosted seminars for federal judges at Montana resorts. Until last year, Ginsburg was a member of FREE's board. Ginsburg, Sentelle and 10 other federal judges at this particular conference were warned about deep scientific uncertainties, according to FREE's John Downen, who, in writing about the seminar, suggested that people adapt to higher temperatures through economic growth, rather than by cutting emissions.
While relaxing in beautiful surroundings, the judges heard from Caterpillar Inc., the largest U.S. manufacturer of greenhouse-gas-producing construction and mining equipment, and Temple-Inland, a major forest products company. The Caterpillar representative lectured on "the environmental and economic impact of regulation by litigation," which must have been particularly interesting; the company has paid huge fines for rigging its heavy-duty diesel engines to bypass emission controls. Caterpillar and Temple-Inland both belong to industry associations that filed briefs opposing global warming regulation in the case heard later by Ginsburg and Sentelle.
According to FREE, some of its funding has come from the M.J. Murdock Foundation, which also donated $250,00,000 to the conservative Washington Legal Foundation in 2003. WLF filed a friend-of-the-court brief opposing regulation of carbon dioxide emissions in the D.C. Circuit case.
FREE's Pete Geddes has dismissed the idea that these judicial junkets affect court decisions, telling a Washington Post reporter recently, "I don't think they're going to come to Montana, go on a horsy ride and run home and strike down federal environmental laws." But judges attend these seminars for an education, so some of what they are taught is bound to stick.
Leaders of Congress and the federal courts seem to recognize that the federal judiciary ought to be out of bounds for lobbyists. Chief Justice John G. Roberts testified during his confirmation hearing that "special interests should not be permitted to lobby federal judges," and Sen. Patrick J. Leahy (D-Vt.) is sponsoring legislation that would ban such trips, while creating a fund to pay for legal education for judges.
Voters can replace elected officials who seem too close to special interest groups. But judges are appointed for life, and allowing insider access threatens the integrity of the one branch of government that should stand above politics. Court cases must be won by argument, not by influence, and that means putting a stop to judicial junkets that give one side of the debate an unfair advantage.
Eric Schaeffer was director of the EPA's Office of Regulatory Enforcement from 1997 to 2002 and now directs the nonprofit Environmental Integrity Project.