WASHINGTON – Supreme Court nominee John Roberts (search) once offered the National Mining Association some unpaid advice on how to intervene in other people's court cases. Two years later he was hired by the group to argue against a citizens group trying to stop coal companies from shearing off the tops of West Virginia's mountains.
That relationship is among a number of situations where Roberts — as a government lawyer, private attorney and federal appeals judge — has become involved in environmental issues. His critics say he tended generally to side with the views of industry.
"He defers to economic interests over the public health, to executive agencies over the Congress, and to secrecy over the public's right-to-know," complains Carl Pope, executive director of the Sierra Club (search), a major environmental protection group. "He's always tweaking the facts to the benefit of insiders."
But lawyer Hans Bader of the Competitive Enterprise Institute (search), which advocates reducing government regulation, says Roberts views on environmental issues do not stray far from those of retiring Justice Sandra Day O'Connor (search).
"She may have been liberal on some things, but she was not liberal on environmental regulation and property rights," said Bader.
A review of Roberts' record as an attorney and more recently a U.S. Court of Appeals judge provides a glimpse of how he has looked upon issues like federal mining law, the Endangered Species Act and land use issues.
Roberts has not always argued in favor of development, as demonstrated in a case involving protection of Lake Tahoe. Representing the Tahoe Regional Planning Agency in 2002, Roberts persuaded the U.S. Supreme Court to uphold a moratorium on developing the lake's shoreline.
While in the Reagan administration as an aide to White House counsel Fred Fielding, Roberts helped run damage control in 1982 over the refusal by then- Environmental Protection Agency head Anne Gorsuch to provide Congress documents on irregularities in the Superfund toxic waste program.
In a memo, Roberts cautioned that Reagan himself might become entangled in the controversy since Gorsuch was "a presidential appointee carrying out a presidential directive" when she refused to share subpoenaed documents with a House subcommittee.
If that happened, wrote Roberts, it "could be very politically damaging. With Mrs. Gorsuch in the case there is at least a 'buffer' separating the president from the dispute."
Years later, in 1999, as a partner in the Hogan & Hartson law firm here, Roberts was asked to give a presentation at a conference held by the National Mining Association. He offered "several pointers" on how the group might get their views heard by judges.
The "flood of increasingly partisan" friend-of-the-court briefs in recent high-profile appeals cases "raises the question of whether the briefs are read at all, let alone whether they influence the eventual outcome of a case," he advised the mining group.
In 1990, Roberts persuaded the Supreme Court to overturn a lower court ruling in a lawsuit brought by the National Wildlife Federation challenging mining operations in Wyoming and Arizona. He argued successfully that the lower court shouldn't have heard the case since it was based on "vague" claims by two federation members that the mining activities impaired their enjoyment of the land.
Bader said Roberts may be "a hair more conservative" than O'Connor on the issue of when someone has legal standing to sue in court. Roberts may be "a bit more willing to kick out lawsuits from people who don't really have injuries," Bader said.
Just two months ago, Roberts backed the Interior Department in a case challenging oil leases it had issued. Writing for an appeals court majority, Roberts said courts should defer to an agency's view where regulations are complex and highly technical.
A hint of Roberts' views on land use and endangered species may be found in a 2003 case in which the judge took a minority view over the protection of a California toad.
Noting that the federal government's authority was based on its regulation of interstate commerce, Roberts wondered why the Interior Department should be "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California."
Many environment laws are based on government's constitutional power to regulate interstate commerce, says Glenn Sugameli of Earthjustice, a law firm devoted to environmental protection. He said Roberts' views expressed in the California toad case "does raise serious questions" about how he might view "the constitutionality of important protections under the Endangered Species Act."