In his first opinion as a DC federal appeals court judge,
Roberts unsuccessfully urged the entire court to reconsider a
decision that rejected a constitutional challenge by a developer
to Endangered Species Act safeguards for an endangered
southwestern toad. Because the toad's habitat is confined to
only one state, Roberts suggested that the Commerce Clause,
which governs interstate commerce, did not enable the federal
government to protect the species. Environmental groups contend
that such an interpretation of the Commerce Clause implies that
Roberts may hold an extremely narrow view of Congress' authority
to enact federal environmental, civil rights and other
protections.

Glenn Sugameli, head of Earthjustice's judicial nomination
project, says "Roberts' opinion advanced a view of Congressional
power that could threaten to undermine a wide swath of
environmental protections, including the Clean Air Act and Clean
Water Act."

Last year Roberts ruled against the Sierra Club's effort to
require the Environmental Protection Agency to enforce statutory
limits on air pollution from copper smelters. Roberts upheld
EPA's refusal to adopt stronger standards than those required by
EPA's rule, despite evidence that limits more than twice as
protective were already being achieved.

Roberts also wrote a dissenting opinion, largely glossed over in
national media coverage, that supported a Bush Administration
petition to rehear a case regarding the release of Vice
President Cheney's secret energy task force records.

In the lawsuit, Judicial Watch and Sierra Club demanded that the
White House provide the names of all private industry executives
who participated in crafting its closed-door national energy
policy in 2002. The plaintiffs charged that the vice president's
task force violated federal law by withholding its records from
the public.

Before gaining a seat on the DC Circuit Court of Appeals,
Roberts worked as acting solicitor general under the first
President Bush, where he represented the government in a Supreme
Court case brought against then-Interior Secretary Manuel Lujan
Jr. by the National Wildlife Federation (NWF). The suit
challenged the Interior Department's Land Withdrawal Review
Program, which reversed thousands of actions that had
"withdrawn" (protected) millions of acres of federal land from
mining and other development.

Roberts argued that the NWF members did not adequately prove
they had been injured by the specific government actions. He
added that no one could bring an overall challenge to the Land
Withdrawal Review Program, even though, as the dissent
explained, the Department had "attempted to develop and
implement a comprehensive scheme for the termination of
classifications and withdrawals." The Supreme Court sided with
Roberts in a 5-4 ruling, making it more difficult for citizens
to file claims against the government for environmental damage.

Again arguing in favor of suppressing citizens' rights to pursue
environmental litigation, but this time outside of the
courtroom, Roberts wrote a Duke Law Journal article supporting a
1992 majority opinion by Justice Antonin Scalia that further
narrowed citizens' ability to bring challenges to government
actions that damaged the environment.

This case, Lujan v. Defenders of Wildlife, involved a challenge
to a national rule that consultation with federal wildlife
agencies under the ESA would no longer be required for U.S.
agency actions in foreign nations that may threaten endangered
species. Roberts wrote that, "If a court errs in its standing
dismissal and should have reached the merits, that court is
wrong--not activist." Earthjustice's Sugameli stated that
"Roberts' analysis ignores that a judge may be an 'activist' if
he or she applies the law of standing unfairly, as by
unreasonably restricting court access as to one class of
plaintiff-- for example, private citizens-- while not
restricting access for another type of plaintiff-- for example,
industry."

As a corporate attorney, Roberts also wrote an amicus brief in
2001 supporting the National Mining Association's challenge to a
government ban on mountaintop removal mining.

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