This research article was authored by John Echeverria, Professor of Law, Vermont Law School, commissioned by the Piper Fund. A version of it was published in the Journal of Environmental Law.
This paper presents case studies of the judicial electoral process and its implications for environmental legal protections in four states: Montana, North Carolina, Washington, and Wisconsin. Academics and other researchers have documented the growing partisan competition and increasingly high levels of expenditures in state judicial elections. Prior research has also documented the efforts by various special interests to influence the ideological complexion of the state courts by supporting or opposing specific candidates for judicial office. This paper builds upon this prior work by attempting to determine whether successful efforts to change the personnel sitting on specific state courts have, in fact, influenced subsequent rulings by these courts in environmental cases, as intended by certain advocates.
The federal courts, and the U.S. Supreme Court in particular, play a more visible role in the development of environmental law than the state courts. But the state courts play an important role in the development of environmental law as well, by virtue of the breadth of their jurisdiction in cases involving environmental issues, the States’ adoption of pollution control and other environmental laws that parallel similar federal statutes, and the States’ exercise of extensive environmental law enforcement responsibilities delegated to them by the federal
government. The importance of the state courts in the development of environmental law, standing alone, makes it worthwhile to study how the outcomes of elections to the States’ highest courts may affect the content of environmental law.
In addition, environmental law rulings by the elected state courts are worthy of attention because various special interests have invested substantial resources in state judicial elections for the explicit purpose of affecting the outcomes of environmental law cases before these courts. The natural question raised by this political activity is whether the effort has been worthwhile, as measured by actual changes in case outcomes. As I have previously described, starting in the mid-1990s, advocacy groups and consulting firms financed by Charles and David Koch initiated a nationwide effort to change the direction of state environmental law (and law on other topics) by organizing political efforts to elect conservative candidates to the state courts. Around the same time, the U.S. Chamber of Commerce created its Institute for Legal Reform, which seeks to promote the election of business friendly judges to the state courts, and business groups in individual states mounted similar efforts. These business groups and their conservative allies publicly justified these initiatives as necessary, from their perspective, to respond to prior efforts by trial lawyers to secure the election of judges sympathetic to personal injury claims. But the conservative counter-offensive has plainly been broader and more intense than anything that came before. The Kochs and allied groups focused on state judicial elections in part because they have traditionally been sleepy, low-key contests in which relatively modest investments in campaign contributions and independent advocacy can yield significant political rewards.