Published on Tuesday, July 25, 2000 in the Washington Post
Report Links Environmental Rulings, Judges' Free Trips
by George Lardner Jr.
Federal judges who attended expenses-paid seminars that favor "free market" solutions to environmental problems struck down protections in some of the decade's significant environmental cases, according to a study of the increasingly popular judicial trips.

Last year alone, the report said, nearly 100 federal judges--more than 10 percent of those active on the bench--flew off to a luxury resort for the sessions. The seminars are underwritten by conservative foundations, which in turn get their money from corporations and other pro-business interests.

"Corporate special interests are attempting to buy judicial influence at the highest levels, and it appears to be working," asserted Doug Kendall, executive director of Community Rights Counsel (CRC), a public interest law firm that studied privately funded trips taken by hundreds of federal judges from 1992 through 1998.

Among those singled out for criticism in the report, which was released yesterday, were judges Stephen Williams, David Sentelle and Douglas Ginsburg, all appointees of President Ronald Reagan to the U.S. Court of Appeals for the District of Columbia.

Williams drew fire for upholding habitat protection provisions of the Endangered Species Act in a 2-1 decision in July 1993, then attending two weeks later a week-long seminar run by the Foundation for Research and Economics (FREE) at "a traditional dude ranch" in Montana. On his return, Williams granted a rehearing in the case, changed his vote and wrote the opinion striking down the section of the law, which had been contested by logging companies and allied interests.

The Supreme Court voted 6-3 the next year to reverse Williams and uphold the law, which prohibited killing or injuring endangered species on private lands.

Williams's office said he was out of town. He did not return a call seeking comment.

At a news conference, Kendall said he was not claiming cause-and-effect between the seminars and the court decisions. He did argue the study produced strong evidence that the educational sessions had "some influence" on the judges who attended them.

Kendall said CRC gets its money from foundations such as the Rockefeller Family Fund that "care about environmental protections." He called on Congress to ban privately funded seminars for judges and let the courts rely exclusively on the 33-year-old Federal Judicial Center.

Run by a board of judges, the center conducted 843 educational programs for judges and court staffers last year.

FREE Chairman John A. Baden, who described himself as "pro-environment," took issue with characterizations of his group's seminars as one-sided, and said they regularly included speakers from groups such as the Environmental Defense Fund and Defenders of Wildlife. He said in an interview that judges who attend "tell me these are the most stimulating and balanced programs they attend."

A "desk reference" book for federal judges published by FREE offers a view of pollution as a cost produced by both the polluter and the victim because "your steel mill would do no damage if I (and other people) did not happen to live downwind from it."

Asked what he thought of Judge Williams's decision in the 1993 case, Baden said: "I don't pay attention to cases."

The CRC listed FREE and two other "right of center" organizations--the Law and Economics Center at George Mason University and the Indianapolis-based Liberty Fund--as dominant in the field of private judicial education.

In a foreword to the study, Abner Mikva, former chief judge of the D.C. Circuit, stressed the need to avoid even an appearance of impropriety. He said steps to protect judicial integrity "all become meaningless when private interests are allowed to wine and dine judges at fancy resorts under the pretext of 'educating' them about complicated issues."

Kendall was highly critical of a 1998 trip to a FREE seminar by Williams (his third) and Ginsburg (his seventh) after they had been assigned to a case the American Trucking Association brought against proposed clean air health standards for soot and smog. In that case, now before the Supreme Court, they voted to strike down the standards.

Ginsburg, who according to the report is a member of FREE'S board of directors, was out of town and did not return a call seeking comment.

The report criticized Sentelle for a 1996 appellate ruling denying a challenge to a proposed tax credit for a gasoline additive on the grounds that wider use could harm wildlife and water supplies.

Sentelle, who did not attend a FREE seminar until 1998, denied the challengers' standing, the report said, because they had not shown a "demonstrably increased risk of serious environmental harm" and a link between that risk and their "particular interests."

Sentelle's office said he was not in, and he did not return a call seeking comment.

Mikva, a former White House counsel as well as judge, said rules are stricter in the executive branch.

"Whenever we were invited to attend or speak at a private gathering, the government paid our way," he said. "Federal judges could use such a prophylaxis. If the judges want to go traveling, let the government pay for the trip."

2000 The Washington Post Company