Distributive Justice: Attitudes Towards Access to Federal Courts in Environmental Citizen Suits
Research Thesis
Presented in partial fulfillment of the requirements for graduation with research distinction in
Political Science in the undergraduate colleges of The Ohio State University
by
Russell Patterson
The Ohio State University
April 2016
Project Advisor: Professor Lawrence Baum, Department of Political Science
1
Distributive Justice:
Attitudes Towards Access to Federal Courts in Environmental Citizen Suits
Introduction
The Clean Air Act1, Clean Water Act2, and Resource Conservation and Recovery Act3
share the common purpose of protecting the natural environment and a common method of
achieving their goals. When Congress amended the Clean Air Act in 1970, it adopted a citizen
suit provision that allowed for public participation in the enforcement of its air pollution
standards. Today, nearly every major environmental statute contains a modified version of that
same provision.4 The Environmental Protection Agency is responsible for the preponderance of
enforcement measures under federal environmental statutes, but the citizen suit provision
provides for situations in which the public may supplement and enhance the coverage maintained
by the Administrator. It delineates the parties that are permitted to bring suits in federal courts,
and against whom and under what circumstances they may bring them. In this way, Congress
sets a range of access that is available under the statutes, and judges who hear the cases
determine the aggregate level of access available across the judicial system.
The design of this thesis reflects both a theoretical approach to the study of attitudes
towards access and a few practical limitations of its scope and coverage. Although nearly every
environmental statute contains a citizen suit provision, this study is limited to the CAA, CWA,
and RCRA. In large part this was due to resource and time constraints, but it is not expected to
systematically bias the results. While attitudes towards access may be tied to specific statutes, it
is more likely that they are related to the types of factors hypothesized in this thesis.
Furthermore, the analysis of those three statutes is restricted to the type of citizen suit
provision first established in the CAA and adopted in the CWA and RCRA. In effect, the
analysis is limited to one type of access claim: that which seeks to increase the ability of a party
to litigate its claims. Other access claims, such as those that arise from 42 U.S.C. § 7607, 33
U.S.C. § 1369, and 42 U.S.C. § 6974, involve judicial review of the Administrator’s
discretionary duties, and may relate differently to hypothesized ideological and institutional
factors. While in one sense this is a limitation, it is also a natural control. It allows the study to
hold constant the types of claims across three statutes and four decades of litigation to examine
directly the relationships between the decisions on these claims and hypothesized variables.
This thesis will examine the congressional chronology of the drafting and amending of
the citizen suit provision and its adoption across three statutes, and analyze the relationship
between factors that influence judicial decisions on access and outcomes in federal district courts
and courts of appeals. It hypothesizes that the ideological preferences of opinion-writing judges
are positively related to decisions on access claims, and examines how the relationship is
affected by the identity of the petitioner and the year of decision. Through the examination of
these relationships, this study demonstrates the effects that institutions and their actors have on
the realization of environmental policy in the United States.
1
42 U.S.C. § 7401-7671.
33 U.S.C. § 1251-1387.
3
42 U.S.C. § 6901-6992.
4
42 U.S.C. § 7604(a); 42 U.S.C. § 6972(a); 42 U.S.C. § 9659(a); 16 U.S.C. § 1540(a).
2
2
1. Congress
Historical Development
In the environmental decade, Congress enacted legislation to protect and conserve the
natural environment and its resources. The Clean Air Act, Clean Water Act, and Resource
Conservation and Recovery Act are among the signature pieces of legislation either written or
amended during the period. The structure and purpose of their citizen suit provisions reflected
the belief held at the time by members of Congress that there is a positive relationship between
the degree of access to enforcement procedures and the effectiveness of the statute at achieving
compliance with its regulations.
i. Clean Air Act (CAA)
The Air Pollution Control Act of 1955 was the first federal statute to address national air
pollution.5 It provided funds for research but no means of setting or enforcing pollution standards
or limits. Congress first granted positive authority to the government to regulate pollution in the
Clean Air Act of 1963.6 It broadened this authority to include private citizens in 1970, when it
amended the Act to include the first citizen suit provision in an environmental statute. Section
304 granted the right to bring suits against parties who failed to comply with the statute’s air
pollution standards and to compel the Environmental Protection Agency Administrator to
perform his or her non-discretionary duties:
SEC. 304. (a) Except as provided in subsection (b), any person may commence a civil
action on his own behalf—
"(1) against any person (including (i) the United States, and (ii) any other
governmental instrumentality or agency to the extent permitted by the Eleventh
Amendment to the Constitution) who is alleged to be in violation of (A) an emission
standard or limitation under this Act or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
"(2) against the Administrator where there is alleged a failure of the Administrator
to perform any act or duty under this Act which is not discretionary with the
Administrator.”
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such an emission standard or
limitation, or such an order, or to order the Administrator to perform such act or duty, as
the case may be.7
It was created in response to the perceived inability of the federal government to enforce
an adequate level of compliance with the statute. Senator Edmund Muskie of Maine stated at the
time of adoption that those who supported the citizen suit provision believed that “it would be
impossible to do the total job of air pollution cleanup relying wholly upon the Federal
5
Pub. L. 84-159 (1955).
Pub. L. 88-206 (1963).
7
Pub. L. 91-604 (1970).
6
3
bureaucracy.” 8 They recognized that any environmental legislation must address the issues
inherent to the regulation of a public good like the environment. In particular, they were
concerned with the collective action problems and incentive structures that prevent adequate
enforcement of the Act.9 Therefore, the citizen suit provision was enacted with the belief that an
expansion of available enforcement measures would lead to more comprehensive regulation of
air pollution.
The grant of access was not without limits. Section 304(b) limited suits brought under the
provision to original jurisdiction in federal district courts, and established prerequisites that
included a 60-day notice requirement and a diligent prosecution exemption. 10 The notice
requirement precluded suits from being filed “prior to 60 days after the plaintiff has given notice
of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to
any alleged violator of the standard, limitation, or order…”11 It was intended to allow inadvertent
violators of the Act to come into compliance with it without being subjected to costly litigation.
Similarly, the diligent prosecution exemption functions to prevent the filing of citizen suits when
the Administrator or State is already engaged in the prosecution of a violator.
These limits had the effect of restricting the number and types of suits that could be
brought under the provision; they are products of the intent to set a level of access that rests in
equilibrium between the extremes of no access and unlimited access. In addition to these limits,
Congress created incentives and disincentives to strike a balance between more comprehensive
enforcement and bogged-down courts. Senator Muskie speaks to this in his discussion of the
awarding of attorney fees:
This the Committee attempted to discourage by providing that the costs of litigation –
including counsel fees – may be awarded by the courts to the defendants in such cases, so
that the citizen who brings a harassing suit is subject not only to the loss of his own costs of
litigation, but to the burden of bearing the costs of the parties against whom he has brought
the suit in the first instance.12
Although Senator Muskie did not speak to it directly, he provided a clear example of the second
means by which Congress sought to establish the equilibrium value of private enforcement.
Through attorney fees and other monetary awards or penalties that arise from litigation, the
citizen suit provision creates a second dimension of access that is distinct from determinations of
jurisdiction or standing. These awards and penalties function as incentives that do not place
limits on access to enforcement procedures, but rather encourage suits of a quality consistent
with the purposes of the Act.
8
United States. Cong. Senate. Committee on Public Works. Hearing on Implementation of the
Clean Air Act Amendments of 1970 – Part 1. February 16, 1972. 92nd Cong. 2nd sess.
Washington: GPO, 1972 (statement of Edmund Muskie, Senator, Maine).
9
United States. Cong. Senate. Committee on Public Works. Hearing on Implementation of the
Clean Air Act Amendments of 1970 – Part 1. February 16, 1972. 92nd Cong. 2nd sess.
Washington: GPO, 1972 (statement of Richard Ayres, Director, Project on Clean Air, Natural
Resources Defense Council).
10
42 U.S.C. 7604(b).
11
Id.
12
Clean Air Act Amendments of 1970: Senate Debate on S. 4358, 91st Cong., 2d Sess. (1970).
4
The process by which this equilibrium under the provision is reached began in 1970 and
continues today. Once Congress enacted the Clean Air Act Amendments of 1970, the federal
courts and litigants began to explore the practical application of its citizen suit provision. Across
the country, judges took up the task of interpreting the provision for the first time. As more suits
were brought and cases decided, it became clear to members in Congress that the limitations of
the citizen suit were preventing it from achieving its goal. The drawbacks were twofold: (i)
violators were only liable for on-going violations of the Act13, and (ii) the provision did not
provide for civil damages; instead it allowed for injunctive relief against the violators.14
In 1977, Congress revisited the Act. It broadened the definition of person to include
federal entities, and it gave citizen enforcers the power to prevent the construction or operation
of certain facilities without a permit.15 It did not, however, address either of its two beforementioned inadequacies. In Gwaltney, Ltd. V. Chesapeake Bay Found (1987), the Supreme Court
ruled that violators whose violations were not ongoing could not be found liable under the Act.
Its decision had the effect of shielding polluters, and therefore undermining the effectiveness of
the citizen suit provision.16
It was not until 1990 that Congress again took up the tasking of amending the Clean Air
Act. This time, it included five major changes to the citizen suit provision that addressed the
failures exposed over the past two decades of litigation. Section 304(a) was amended to include
civil penalties, past violations, suits to compel Agency action that is unreasonably delayed, and a
penalty fund that is maintained by the Treasury to collect and use fees to further the goals of the
Act.17 These changes affected two interrelated parts that underlie the citizen suit provision, and
led to an overall expansion of access to federal courts under the CAA. First, they broadened the
authority of private individuals to bring suits. Second, they increased the incentives for
individuals to bring suits. With these changes put in place, Congress left further determinations
of the level of access to federal courts.
ii. Clean Water Act (CWA)
Congress did not limit its regulatory reach to the air. In 1972, it enacted the Clean Water
Act to maintain and restore the chemical, physical, and biological integrity of America’s
waters.18 Section 505 of the Act is a modified version of section 304 of the CAA, and it operates
in largely the same manner. It contains the same grant to bring suit against violators of the act
and the Administrator when there is an alleged failure to perform non-discretionary duties; it also
included the same notice requirement and diligent prosecution exemption:
SEC. 505. (a) Except as provided in subsection (b) of this section and section 1319(g)(6)
of this title, any citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other
13
Gwaltney of Smithfield, Ltd. V. Chesapeake Bay Foundation, Inc. 484 U.S. 49 (1987).
42 U.S.C. 7504(a).
15
Pub. L. 95-95 (1977).
16
Greenbaum, Roger A. and Anne S. Peterson. “The Clean Air Act Amendments of 1990:
Citizen Suits and How They Work.” Fordham Environmental Law Review 2.2 (2011): 79-124.
17
Pub. L. 101-549 (1990).
18
33 U.S.C. 1251.
14
5
governmental instrumentality or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in violation of (A) an effluent
standard or limitation under this chapter or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator
to perform any act or duty under this chapter which is not discretionary with the
Administrator.
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such an effluent standard or
limitation, or such an order, or to order the Administrator to perform such act or duty, as
the case may be, and to apply any appropriate civil penalties under section 1319(d) of this
title.19
Although the provisions share the same purpose, they differed in one important aspect:
the CWA permitted civil penalties in its first iteration.20 The inclusion of civil penalties is not
explained by the legislative history21, but it may account for the larger volume of litigation under
the statute relative to the Clean Air Act and Resource Conservation and Recovery Act.22 It may
also be a reason why the provision was not amended at the same rate as it was in the CAA.
While Congress worked in 1977 and 1990 to address the limitations of its citizen suit provision,
it avoided having to do the same for the CWA by allowing the awarding of civil penalties.
Congress amended the Clean Water Act in 197723 and 198124, but it wasn’t until the Clean
Water Act Amendments of 1987 that it amended section 505. For the first time since it was
enacted in 1972, the citizen suit provision was updated to include a savings clause that preserves
the rights of private individuals provided to them by state common law and other federal statutes,
and provided for the awarding of attorney fees to prevailing or substantially prevailing parties.25
The adjustments made through these amendments are minor relative to those of the CAA; they
do not create new rights or substantially affect the statute’s access framework.
iii. Resource Conservation and Recovery Act (RCRA)
The Resource Conservation and Recovery Act was enacted in 1976 to regulate the
disposal and recycling of hazardous waste.26 At the time of its enactment, Congress had included
citizen suit provisions in both the Clean Air Act and Clean Water Act. It continued this trend
when it amended the statute in 1986 to include 7002:
19
Pub. L. 92-500 (1972).
33 U.S.C. 1365(a) (1972).
21
Miller. “Private Enforcement of Federal Pollution Control Laws (pt. 1).” 13 Environmental
Law Reporter (Environmental Law Institute) 10.309 (1983).
22
Fotis, Stephen. “Private Enforcement of the Clean Air Act and the Clean Water Act.”
American University Law Review 35.127 (1985): 127-173.
23
Pub. L. 95-217 (1977).
24
Pub. L. 97-117 (1981).
25
Pub. L. 100-4 (1987).
26
42 U.S.C. 6902(a).
20
6
SEC. 7002. (a) IN GENERAL.—Except as provided in subsection (b) or (c) of this
section, any person may commence a civil action on his own behalf—
(1) against any person (including (a) the United States, and (b) any other
governmental instrumentality or agency, to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in violation of any permit, standard,
regulation, condition, requirement, or order which has become effective pursuant to this
Act; or
(2) against the Administrator where there is alleged a failure of the Administrator
to perform any act or duty under this Act which is not discretionary with the
Administrator. Any action under paragraph (a)(1) of this subsection shall be brought in
the district court for the district in which the alleged violation occurred.
Any action brought under paragraph (a)(2) of this subsection may be brought in
the district court for the district in which the alleged violation occurred or in the District
Court of the District of Columbia. The district court shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the parties, to enforce such
regulation or order, or to order the Administrator to perform such act or duty as the case
may be.27
The underlying structure of the provision is nearly an exact copy of section 304 of the
CAA. It includes the same rights to bring suits against violators and the Administrator for failure
to perform non-discretionary duties, and it also does not provide an avenue for awarding civil
penalties. The two provisions differ primarily in their specific language, which is largely a
function of the resources or action they regulate. In the CAA, Congress set standards and
limitations with respect to levels of air pollution. It follows, therefore, that the language of its
citizen suit provision focuses on the right of private individuals to enforce these standards and
limitations. The RCRA does not regulate levels of pollution, and instead provides private
individuals the right to enforce permits and other regulations.
Congressional Environmental Policy
i. Study Design
In many ways, the citizen suit provision was a product of its time. It reflected the broad
consensus surrounding the need for federal intervention in the environmental movement. But the
federal regulation of the environment has become an increasingly ideologically divisive issue.
Today, the regulation and conservation of the environment constitute central tenets of
Republican 28 and Democratic 29 policy platforms. In this historical context, the citizen suit
provision tells the story of general attitudes towards federal environmental regulation, and
specifically towards the right to enforce statutory provisions in federal courts. It provides the
27
Pub. L. 94-580 (1976).
Republican Party Platforms: "2012 Republican Party Platform: America’s Natural Resources:
Energy, Agriculture and the Environment." Gerhard Peters and John T. Woolley, September 3,
2012. The American Presidency Project. Web.
29
Republican Party Platforms: "2012 Republican Party Platform: All-of-the-Above Energy
Policy" Gerhard Peters and John T. Woolley, September 3, 2012. The American Presidency
Project. Web.
28
7
means by which this thesis will examine attitudes towards access in environmental citizen suits
that litigate the CAA, CWA, and RCRA.
For the purposes of this study, access is defined as the distribution of available justice
among the population that seeks to enforce specific statutory duties, compel agency action,
prevent pollution, or recover damages in federal courts. It can be ordered on a continuum that is
increasing in the aggregate ability of and incentives for those parties to bring claims.
Distributions are unique to the statute and relative to the year of litigation. They are the products
of processes that span two branches of the federal government. The process begins when
Congress writes the statute and sets lower and upper bounds on the distribution. As was shown in
the historical overview of the citizen suit provision, this is done by establishing the parameters
that determine who is permitted and incentivized to bring claims, and against whom and under
what circumstances they may bring them. Once the statute is enacted, litigants and judges
interpret the statutory framework and make decisions that in the aggregate determine a specific
value of access in each case.
ii. Access as a Policy Tool
Since 1970, Congressional advocates of the citizen suit provision have touted its ability to
increase compliance with environmental statutes through the empowerment of private attorneys
general.30 But at the time, Congress could have pursued this goal in any number of ways. Why
did it enact the citizen suit provision? Why not focus directly on the EPA? Why involve private
individuals in the enforcement of government regulations? It may be that the answers to these
questions are largely related to the contemporary consensus surrounding the need for federal
regulation of the environment, but that does not explain the absence of recent congressional
action in this area despite the growing ideological divide.
Although there may be no clear reason for this, there are explicit reasons why
congressional attitudes towards access to federal courts under the citizen suit provision are
driven by ideological policy preferences. Those who support the provision and those who do not
demonstrate a shared belief that the aggregate level of enforcement is increasing in the number
of people who are invested with the power to enforce statutory standards. This logic is especially
relevant to the regulation of the environment, which, as a public good, is subject to incentive
problems that lead to inadequate contributions to its conservation.31
In the absence of federal regulation, there are few incentives for private individuals to
contribute resources to the maintenance of shared natural resources. Through the CAA, CWA,
and RCRA, Congress committed itself and federal resources to addressing these problems. The
statutory empowerment of the EPA and other federal agencies to proscribe activities that
contribute to the erosion of the natural environment is the primary method of conservation in the
nation. When Congress began to debate the adoption of the citizen suit provision in 1970, it
signaled its discontent with the ability of the federal government to maintain adequate
compliance with the CAA. But any consideration of involving the public in federal enforcement
processes would have to confront the collective action problems that led to the initial need for
federal regulation.
30
Friends of Earth v. Carey, 6 ELR 20488 (2d Cir. 1976).
Draohos, Peter. “The Regulation of Public Goods.” Journal of International Economic Law
7(2): 321-339.
31
8
Congress addressed these challenges over time along two dimensions, which were
introduced earlier in this thesis. First, it dispersed the legal power to enforce environmental
standards throughout the population. Second, it provided litigants with means to recover attorney
fees and civil costs to counteract disincentives such as concentrated costs and diffuse benefits –
issues that are particularly relevant to environmental regulation, which imposes costs on
individual firms and industries and confers benefits to the public at large.32 The two dimensions
along which Congress addressed these led to four decades of continuous litigation of
congressional pollution standards. Despite concern for the possibility of creating overly litigious
private attorneys general, opponents of the citizen suit provisions have not worked to decrease
the effectiveness of the statutes themselves. In fact, the Clean Air Act Amendments of 1990,
which were passed under a Republican administration, expanded access. What can explain this?
It may be that the judges have enforced a level of access that is acceptable to both conservatives
and liberals, or that conservatives were more concerned with who enforced environmental
legislation than they were with the legislation itself.
In the decade before Congress expanded access, the Reagan administration sought to
systematically diminish the ability of the federal government to enforce environmental
regulations.33 Through budget cuts and the appointment of Ann Gorsuch to lead the EPA,
Reagan and other Republicans undercut the goals envisioned by environmental acts. In the
absence of adequate federal enforcement, it again fell to private individuals to maintain federal
environmental standards.34 While it may be that the conservative distaste for federal intervention
in the environmental movement carried over into all aspects of governance, it is also possible hat
they were willing to support environmental statutes so long as they were enforced by private
citizens rather than by federal administrative agencies.35 Whether or not this is true, it is a
plausible explanation and the fact remains that Congress has adopted citizen suit provisions in
nearly every environmental statute using the same structure and language over times periods in
which ideological attitudes towards the federal regulation of the environment have widely
fluctuated.
2. Federal Courts
Procedure and Policymaking
Litigation of CAA § 304, CWA § 505, and RCRA § 7002 begins in federal district
courts. Cases may be initiated by any number of private citizens or groups, including
environmental organizations, businesses, and individuals. Plaintiffs share a common desire to
enforce one or more provisions of the three statutes, and often litigate multiple statutes in a
single case. There may also be multiple issues involved in the litigation, and it is not always true
32
Harrison, Kathryn. “Passing the Buck: Federalism and Canadian Environmental Policy.”
Vancouver: UBC Press, 1996.
33
Id. at 22.
34
Coplan, Karl S. “Citizen Litigants Citizen Regulators: Four Cass Where Citizen Suits Drove
Development of Clean Water Law.” Colorado Natural Resources, Energy & Environmental Law
Review 25.1 (2014): 63-124.
35
Smith, Beverly M. “The Viability of Citizens’ Suits under the Clean Water Act after Gwaltney
of Smithfield v. Chesapeake Bay Foundation.” Case Western Reserve Law Review 40.1 (1989):
1-78.
9
that access is one of them. But in this thesis, every case discussed or analyzed led to a decision
by one or more judges on an access claim.
Once a judge issues a ruling at the district court level, litigants may file an appeal to the
courts of appeals and afterwards file a petition for a writ of certiorari to the U.S. Supreme Court.
When measured by volume, the plurality of litigation occurs at the district court level, and it
decreases at each subsequent level. Due to the rarity of Supreme Court decisions on access
claims under environmental citizen suit provisions, those cases may be discussed in the thesis but
were not included in its analysis.
At each court level, litigation of the citizen suit provisions produces outcomes that
depend on institutional characteristics, ideological attitudes, statutory interpretations, and policy
considerations.36 In suits that litigate access claims, these factors are realized through the judicial
function of gatekeeping.37 Judges at every level are responsible for determining “the policy that
is to guide the federal courts in their determination of what sorts of issues and what types of
litigants may have their day in federal court.”38 Judicial gatekeeping is distinct from the process
by which dockets are determined; whereas gatekeeping activity involves access policymaking39,
federal district and circuit courts have no discretion over their dockets. When district and circuit
court judges make decisions on access claims arising from environmental citizen suit provisions,
they may be revealing their underlying policy preferences towards access, litigants, and statutes.
If policy preferences are related to ideological attitudes and beliefs, then analysis should
demonstrate direct relationships between them. If instead judges hold general views towards
access claims irrespective of their underlying policy considerations, then analysis should find no
relationship.
Methodology
i. Hypothesis
The analytical portion of this study examines the extent to which judicial decisions on
access claims are related to the underlying policy preferences of judges. Its purpose is to
demonstrate how federal judges operate along multiple dimensions of access policy preferences
to bring about their preferred outcomes. It hypothesizes that decisions by liberal and conservative
judges demonstrate policy preferences that can be realized through the level of access to federal
courts under the citizen suit provisions of the CAA, CWA, and RCRA.
Ideological attitudes towards access claims flow from the trade-off between increased
enforcement and increased levels and costs of litigation inherent to citizen suit provisions. In the
congressional portion of this thesis, it was shown how Congress worked to strike a balance
between the empowerment of private attorneys general against their associated costs to courts
and alleged violators. As positions towards the federal regulation of the environment became
increasingly divided ideologically over time, this tradeoff began to reflect the overall ideological
36
Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited
(2002).
37
Rathjen, Gregory J. and Harold J. Spaeth. “Denial of Access and Ideological Preferences: An
Analysis of the Voting Behavior of the Burger Court Justices.” The Western Political Quarterly
36.1 (1983): 71-87.
38
Id.
39
Id.
10
divide in environmental regulation. Conservatives began to view federal regulations as too costly
to businesses and industries, while liberals continued to support federal efforts to conserve the
environment.
In the attitudinal model of judicial decision-making, judges vote to advance their
ideological attitudes and beliefs.40 When this model is applied to the historical context of citizen
suit provisions, it posits that conservative judges are less likely to vote in favor of parties who
seek to expand access than are liberal judges. Over time, this relationship may depend on a
number of factors. In this thesis, those include the statute, identities of litigants, time period, and
court level. They will be included in the analysis as controls to determine to what degree
decisions on access are related to factors other than ideological preferences.
Judges may hold different views towards access claims under the CAA, CWA, or RCRA.
Each statute regulates different aspects of the natural environment, and therefore implicates
different economic interests and entails distinct costs to consumers and producers. When judges
hear cases, they may be using different cost-benefit analyses depending on the statute. Their
decisions, therefore, may relate to the statutes themselves and not only to their overall
ideological policy preferences. In the analysis, statute control variables were included to isolate
these effects and determine to what degree statutes are related to decisions on access.
Petitioners who bring claims under the citizen suit provisions that were analyzed in this
thesis seek to expand access to federal courts. Although these suits may present similar types of
access claims, they are made by a number of different litigants. While petitioners may always
seek to expand access, they may possess unique characteristics that lead to systematic differences
in their abilities to litigate access under citizen suit provisions. For example, environmental
organizations may prevail more often than individuals due to resource and strategic differences.
Control variables were created for both petitioners and defendants to examine how the identities
of these parties relate to decisions on access.
Whereas the statute and party type are factors that may relate to individual decisions on
access, the year of litigation may demonstrate a broad movement in the litigation of access
claims. As the consensus surrounding the need for federal regulations eroded, the ideological
divide sharpened between proponents and opponents of the citizen suit provisions. If this is
reflected in decisions made by federal judges, then the relationship between ideology and
decisions on access is expected to be less significant than it is in later cases. In particular, the
significance is expected to increase during and after the Reagan administration, which is
captured by dividing the time periods between 1970 to 1977 and 1978 to 2016.
In addition to the ideological controls, a court level variable is included to account for
institutional differences between district and circuit courts that may affect decisions on access.
At the district court level, judges are constrained by precedents set by the Courts of Appeals and
the Supreme Court, which may limit the prerogative of district court judges to make decisions
that fully reflect their ideological positions. Conversely, circuit court judges may have greater
opportunities to make decisions that further their policy goals. Therefore, district court cases are
analyzed separately from circuit court cases to allow for comparison between the two.
The preceding four controls represent different theoretical considerations of the way in
which ideologies relate to decisions on access in federal courts. They allow for a more
comprehensive analysis by controlling for factors other than ideological preferences that may
drive decisions on access claims. As gatekeepers, judges produce policy and determine the
40
Id. at 33.
11
degree to which private individuals may enforce environmental standards throughout the nation.
Their decisions are the products of ideological positions towards access claims, cost-benefit
analyses tied to statutes, identities and characteristics of litigants, temporal movements, and
institutional characteristics.
ii. Sample
In order to systematically analyze the relationship between decisions on access claims
and ideological policy preferences, a sample of 535 cases was collected from the Environmental
Law Reporter.41 Of this number, 95 were brought under the Clean Air Act; 266 under the Clean
Water Act; and 174 under the Resource Conservation and Recovery Act. While the intent of this
project was to collect every available case that litigated an access claim under the acts, the
number of cases returned by the ELR required this study to limit itself to a 50% sample of Clean
Water Act cases. The sample was generated non-randomly by the online version of the ELR. It
returned federal district, circuit, and Supreme Court cases that were ordered according to their
relevance to the entered search terms. From the results, cases were selected using established
criteria and without any consideration of their outcomes. Despite the fact that the sample is not
strictly random, there is no reason to believe it is systematically biased in a way that would affect
the analysis of this thesis.
iii. Variables
Every case included in the sample was entered and coded in SPSS Statistics and analyzed
in Stata. 68 variables were created, which served distinct purposes within the context of this
study. Variables used in the analysis include one dependent variable and five independent
variables.
The dependent variable measures decisions on access claims made by federal judges. It
takes three ordered values: 1, 2, and 3. Decisions to expand access were coded 1. Decisions that
increased access in one respect and decreased it in another were coded 2. Decisions to restrict
access were coded 3. All district and circuit court cases are coded for the dependent variable.
The independent variable is a measure of the ideological preferences of federal judges. It
is based on a methodology established by Giles, Hettinger, and Peppers:
“The scores provide a measure of the ideological preferences of the judges of the U.S.
Courts of Appeals. The logic of the scores rests on the assumptions (1) that those
participating in the appointment of federal judges seek to appoint judges who reflect their
policy preferences, (2) that a strong model of senatorial courtesy prevails and (3) that
Poole and Rosenthal Common Space scores provide valid and reliable estimates of the
preferences of the selectors.42” 43
41
Environmental Law Reporter. Environmental Law Institute. Web.
Poole, Keith T. and Howard Rosenthal. “Congress: A Political-Economic History of Roll Call
Voting.” New York: Oxford University Press.
43
Giles, Micheal W., Virginia A. Hettinger and Todd Peppers. 2001. “Picking Federal Judges: A
Note on Policy and Partisan Selection Agendas.” Political Research Quarterly 54(3): 623-641.
42
12
Common Space and GHP scores are ordered from -1 (most liberal) to 1 (most
conservative). The scores, together with the work done by Christina Boyd to adapt them to
district court judges44, provide this thesis with an equivalent measure of ideological attitudes of
both district and circuit court judges. 45 Although equivalent ideological scores are used across
the two court levels, the number of judges who vote in circuit court cases requires additional
ideological score variables to be created for analysis. Whereas the decisions of district courts are
regressed against the ideological score of the judge, the decisions of courts of appeals are
regressed against both the ideological score of the opinion-writing judge and the mean of the
ideological scores of all judges who voted in the case. By using both the ideological score of the
opinion-writing judge and the average ideological score of the court, the analysis will account for
the belief (1) that opinion-writing judges disproportionately influence decisions at the circuit
court level, and (2) that each judge has an equal influence over the outcome.46 Because the
decision variable is coded to take a lower value for decisions that expand access and a higher
value for decisions that restrict it, it has a direct and positive relationship with the ideological
scores.
The statute variable takes three values, each of which corresponds to one of the statutes.
The Clean Air Act was coded 1, the Clean Water Act was coded 2, and the Resource
Conservation and Recovery Act was coded 3. Once every case in the sample was coded for the
statute variable, those values were used to create dummy variables. Of the three statutes, the
Clean Air Act had the fewest cases in the sample, and therefore it was used as the control
variable. In the analyses, it was held constant to determine the separate relationships of the
remaining two statutes with decisions on access.
Five values were used to code the identities of both the petitioners and the defendants: 1,
2, 3, 4, and 5. The federal government was coded 1. State governments were coded 2. Businesses
were coded 3. Environmental groups were coded 4. Individuals were coded 5. Similar to the
dummy statute variable, dummy litigant identity variables were created to isolate the effects that
the type of litigant had on the directions of decisions. Dummy variables for petitioners used the
federal government as a control and those for defendants used environmental organizations. Stata
was not always able to include every dummy variable in the analysis due to the number of
observations and covariance of the variables. In the tables and analysis below, dummy variables
were included when possible and only discussed when Stata produced estimates for them.
An interaction term for ideology and time period was created to measure the strength of
the relationship between decisions on access and GHP ideological scores in different time
periods. It measures this relationship in two time periods: (i) 1970 to 1977 and (ii) 1978 to 2016.
In the historical context of the citizen suit provisions and the corresponding growth in the
44
Boyd, Christina L. 2015. "Federal District Court Judge Ideology Data." available at:
http://cLboyd.net/ideology.html.
45
Epstein, Lee, Andrew D. Martin, Jeffrey A. Segal and Chad Westerland. 2007. “The Judicial
Common Space.” Journal of Law, Economics & Organization 23(2): 303–325.
46
At the circuit court level, opinion-writing judges are believed to be primarily responsible for
the court’s decision and therefore are most relevant to the analysis of this thesis. See Farhang,
Sean and Gregory Waro. “Institutional Dynamics of the U.S. Court of Appeals: Minority
Representation under Panel Decision Making.” Journal of Law, Economics, & Organization 20.2
(2004): 299-330.
13
ideological divide, the interaction term is hypothesized to have a negative relationship, which
means ideology has a stronger effect after 1977.
In the analysis section, Stata models are used to examine relationships between the
dependent and the independent and control variables. The names of variables in the models were
used in statistical analyses, but have been changed for the purposes of presentation in this thesis.
The following reference table provides the relationships between statistical variable names and
their corresponding usages in this thesis.
Table 1: Stata Variable Values
Stata Variable
judgeOneScore
fwpca
rcra
probusiness
proindivid
oppbusiness
Year7077
interact70~C
MeanIdeology
MedianIdeology
Value
Ideological score of opinionwriting judge
Control for CWA
Control for RCRA
Control for business petitioner
Control for individual petitioner
Control for business defendant
Time period of litigation
Interaction term based on
ideology and time period
variables
Mean of ideological scores of
circuit court judges
Median of ideological scores of
circuit court judges
Analysis
i. Procedure
The dataset was split between 367 district court cases and 146 circuit courts of appeals cases,
and separate analyses were used for each dataset to evaluate the relationships of the independent
variables with decisions on access. An ordered logit model was used to account for the unknown
distances between values taken by the decision variable.
ii. District Courts
In district court cases, this study hypothesized a direct positive relationship between
ideological scores and decisions on access claims. Table 2 shows that when the model controlled
for other variables, it found an insignificant relationship between the two while controlling for
statutes and party identifications. Of the dummy variables, only the pro-environmental identity
had a significant relationship with decisions. It may be that environmental groups are more
selective of which cases to litigate, and therefore are more likely to prevail than the other parties
included in the study.
The insignificant relationships between the remaining dummy variables with decisions
may indicate decisions are more closely related to the type of access claim rather than the
14
characteristics of the party that brings it. Similarly, there is no indication that the statute under
which an access claim is brought has a relationship with decisions.
Table 2: Estimated Relationships of Variables in District Court Cases
Ordered logit estimates
Log likelihood = -320.19759
Number of obs
LR chi2(7)
Prob > chi2
Pseudo R2
=
=
=
=
367
43.35
0.0000
0.0634
-----------------------------------------------------------------------------decision |
Coef.
Std. Err.
z
P>|z|
[95% Conf. Interval]
-------------+---------------------------------------------------------------judgeOneSc~e | -.0199524
.129089
-0.15
0.877
-.2729622
.2330573
fwpca | -.3560532
.3057066
-1.16
0.244
-.9552271
.2431207
rcra | -.1109955
.3341949
-0.33
0.740
-.7660055
.5440145
probusiness | -.0924194
.4450009
-0.21
0.835
-.9646052
.7797664
proenv | -.9056958
.4076637
-2.22
0.026
-1.704702
-.1066896
proindivid |
.3024648
.4277508
0.71
0.480
-.5359113
1.140841
oppbusiness | -.7853674
.227492
-3.45
0.001
-1.231244
-.3394913
-------------+---------------------------------------------------------------_cut1 | -1.030282
.4219591
(Ancillary parameters)
_cut2 | -.5953452
.41958
------------------------------------------------------------------------------
In Table 3, the interaction term is included in the logit regression. It is hypothesized to
correspond to a significant negative relationship, which would indicate that the relationship
between the two variables strengthened over time. Using a one-tailed test, the model finds a
statistically significant positive relationship at the 5% significance level. The coefficient value of
the interaction term indicates that there was a stronger positive relationship between ideologies
and decisions between 1970-1977 than there was in the years after 1977.
In the first period, it may be that district court judges were freer to make decisions based
on their ideological preferences. Over time, circuit court judges reviewed these decisions and
developed a body of law around the citizen suit provisions. In the later periods, the insignificance
of the relationship between ideology and decisions may reflect the inability of district court
judges to make access policy consistent with their individual ideological views. This relationship
will be further tested at the courts of appeals level.
15
Table 3: District Court Cases with Interaction Term
Ordered logit estimates
Log likelihood = -318.54713
Number of obs
LR chi2(9)
Prob > chi2
Pseudo R2
=
=
=
=
367
46.65
0.0000
0.0682
-----------------------------------------------------------------------------decision |
Coef.
Std. Err.
z
P>|z|
[95% Conf. Interval]
-------------+---------------------------------------------------------------judgeOneSc~e | -.0403367
.1312245
-0.31
0.759
-.2975319
.2168585
fwpca | -.2972518
.3180618
-0.93
0.350
-.9206415
.3261379
rcra | -.0408999
.3503327
-0.12
0.907
-.7275394
.6457397
probusiness | -.1249313
.4509218
-0.28
0.782
-1.008722
.7588592
proenv | -.9312782
.4161192
-2.24
0.025
-1.746857
-.1156997
proindivid |
.2803658
.4335838
0.65
0.518
-.5694429
1.130174
oppbusiness | -.7859576
.2303029
-3.41
0.001
-1.237343
-.3345723
Year7077 |
.4041609
.5322764
0.76
0.448
-.6390816
1.447403
interact70~C |
2.614999
1.565722
1.67
0.095
-.4537591
5.683758
-------------+---------------------------------------------------------------_cut1 | -.9911219
.4485282
(Ancillary parameters)
_cut2 | -.5523215
.446427
Because of the significance of the interaction term in the previous model, the impact of
ideology on decisions is analyzed over both periods. In Tables 4.1 to 5.2, the model first sets the
ideological score to one standard deviation below its mean and then one above it while holding
all other variables at their median values to produce estimated probabilities for each time period.
It is expected to find a stronger relationship between ideology and decisions in the first period
than it does in the second based on the direction of the interaction term in Table 3.
Table 4.1: Estimated Impact of Ideology at One Standard Deviation Below Mean,
1970-1977
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.7231913
.1201673
.4457952
.9076166
Pr(decision=Mixed de) |
.0740019
.0250781
.0276323
.1231051
Pr(decision=Access r) |
.2028068
.0996276
.0628405
.4459967
Table 4.2: Estimated Impact of Ideology at One Standard Deviation Above Mean,
1970-1977
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.4199884
.1627822
.1331059
.7533386
Pr(decision=Mixed de) |
.0965877
.021342
.0514273
.135071
Pr(decision=Access r) |
.483424
.1668312
.1731651
.8006487
Table 5.1: Estimated Impact of Ideology at One Standard Deviation Below Mean,
1977-2016
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.6773498
.0712453
.5251237
.8013121
Pr(decision=Mixed de) |
.0857349
.0182867
.0527854
.1223588
Pr(decision=Access r) |
.2369153
.0593008
.1343596
.3678277
16
Table 5.2: Estimated Impact of Ideology at One Standard Deviation Above Mean,
1977-2016
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.6725103
.0724084
.5190916
.7997781
Pr(decision=Mixed de) |
.0865056
.0183261
.053309
.1239653
Pr(decision=Access r) |
.2409841
.0605834
.140594
.3758304
The tables below show that ideological preferences had a much larger effect on decisions
from 1970 to 1977 than they did from 1977 to 2016. In the first period, the value of the
ideological scores had a large impact on the probabilities of decisions. In the second period there
was almost no observable difference. With all other variables held at their median values, these
probabilities provide a good estimate of the impact of ideology on decisions. But this thesis
posited the opposite of the results it found. It expected that the increased divisiveness of
environmental regulations would correspond to ideological judges making access policy that is
consistent with their views. Why was the relationship between ideology and decisions stronger in
the first period than in the second?
One reason may have to do with the institutional characteristics of federal courts, which
were introduced earlier in the federal courts portion of this thesis. In light of these findings, it is
appropriate to speculate how the time period may relate to the statutes and court levels. District
court judges decide every access claim and case analyzed in this thesis before appeals court
judges can hear them. In the context of the citizen suit provisions, they often are determining
whether petitioners met the embedded prerequisite requirements or were precluded by the
diligent prosecution exemption. When these are the dispositive issues in a case, the decision may
be clear regardless of ideological attitudes; if a petitioner has failed to provide 60 days notice,
then it may not matter whether the judge holds conservative or liberal views.
Similarly, and even when the issues are more complicated and allow for more discretion,
the passage of time and accumulation of appellate decisions erodes the ability of district court
judges to conduct access policymaking. In the 1970s, district court judges made their decisions
without a large body of precedent, and were beholden only to their interpretations of the
provisions. Later, they were subject to precedent and reversal at the courts of appeals level and
unable to decide cases in ways that revealed their ideological preferences. To the extent that this
is a plausible explanation, the same analysis of circuit court cases should find a stronger
relationship between ideology and decisions that indicates that the level of discretion is a factor
in the relationship.
iii. Courts of Appeals
In courts of appeals cases, the ideological score of the opinion-writing judge is
hypothesized to have direct positive relationships with the court’s decision. In Table 8, the model
did not find a significant relationship between the two. It did, however, find a significant positive
relationship between the mean ideological score of the appeals court judges who voted in cases
and decisions on access – a relationship that contradicts the earlier assumption made in this
thesis. It does not appear that the opinion-writing judge holds a disproportionate influence on the
outcome of cases that decide access. Instead, the findings suggest that the average of the
ideological positions of the judges who vote in a case determines the direction of decisions.
17
The dummy variables are largely insignificant at the courts of appeals level, which may
be a product of the limited sample size. Although the model found that individuals are more
likely to prevail in access claims, it is difficult to interpret the magnitude of the effect without
enlarging the sample. Similarly, it is unclear whether the insignificance of the other variables
would change with the addition of more cases, or whether they do not relate to decisions.
Table 6: Estimated Relationships of Variables in Courts of Appeals Cases
Ordered logit estimates
Log likelihood = -110.29105
Number of obs
LR chi2(8)
Prob > chi2
Pseudo R2
=
=
=
=
146
25.69
0.0012
0.1043
-----------------------------------------------------------------------------decision |
Coef.
Std. Err.
z
P>|z|
[95% Conf. Interval]
-------------+---------------------------------------------------------------judgeOneSc~e |
.1589317
.1581507
1.00
0.315
-.151038
.4689014
meanIdeology |
3.497394
1.098623
3.18
0.001
1.344132
5.650655
fwpca | -.6376987
.5038579
-1.27
0.206
-1.625242
.3498446
rcra |
.2545385
.5957007
0.43
0.669
-.9130134
1.42209
probusiness | -1.691596
.9634016
-1.76
0.079
-3.579829
.196636
proenv |
-1.39414
.8352529
-1.67
0.095
-3.031206
.2429253
proindivid | -1.818331
.9019371
-2.02
0.044
-3.586096
-.0505673
oppbusiness | -.4390942
.3968051
-1.11
0.268
-1.216818
.3386296
-------------+---------------------------------------------------------------_cut1 | -2.227604
.8574589
(Ancillary parameters)
_cut2 | -1.994463
.8536051
------------------------------------------------------------------------------
In Table 7, the interaction term is added to the model. The coefficient on the ideological
score of the opinion-writing judge shows almost no change from its value in the previous model,
and the negative coefficient on the interaction term corresponds to a stronger relationship
between ideology and decisions in the period after 1987 than from 1970 to 1977. Changes in the
values of the dummy variables are again difficult to interpret due to sample size.
18
Table 7: Courts of Appeals Cases with Interaction Term
Ordered logit estimates
Number of obs
LR chi2(10)
Prob > chi2
Pseudo R2
Log likelihood = -109.94328
=
=
=
=
146
26.39
0.0032
0.1072
-----------------------------------------------------------------------------decision |
Coef.
Std. Err.
z
P>|z|
[95% Conf. Interval]
-------------+---------------------------------------------------------------judgeOneSc~e |
.1575187
.1583812
0.99
0.320
-.1529028
.4679402
meanIdeology |
3.535419
1.13768
3.11
0.002
1.305608
5.765231
fwpca | -.6951103
.5224424
-1.33
0.183
-1.719079
.3288581
rcra |
.1712126
.6167977
0.28
0.781
-1.037689
1.380114
probusiness | -1.680515
.9737786
-1.73
0.084
-3.589086
.2280561
proenv | -1.371691
.8449839
-1.62
0.105
-3.027829
.2844468
proindivid | -1.781409
.9126293
-1.95
0.051
-3.57013
.0073118
oppbusiness | -.4532854
.3994125
-1.13
0.256
-1.23612
.3295487
Year7077 | -.7647363
.9447245
-0.81
0.418
-2.616362
1.08689
interact70~A | -2.645023
4.890794
-0.54
0.589
-12.2308
6.940757
-------------+---------------------------------------------------------------_cut1 | -2.296708
.8961196
(Ancillary parameters)
_cut2 |
-2.06247
.8923306
------------------------------------------------------------------------------
In Tables 8.1 and 8.2, the model again sets the ideological scores one standard deviation
below and above their means while holding all other variables at their median values to produce
estimated probabilities. It is important to note that the simulations are based on Table 6 and not
Table 7, because there was no meaningful difference between periods when using the interaction
term. As hypothesized in the earlier discussion of differences in discretion across the two court
levels, the models shows a larger impact of ideology on decisions at the courts of appeals level
than it did at the district court level.
Table 8.1: Estimated Impact of Ideology at One Standard Deviation Below Mean
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.5413671
.1144701
.3081126
.7489186
Pr(decision=Mixed de) |
.0542729
.0208596
.01507
.0960452
Pr(decision=Access r) |
.40436
.112029
.206631
.6425079
Table 8.2: Estimated Impact of Ideology at One Standard Deviation Above Mean
Quantity of Interest |
Mean
Std. Err.
[95% Conf. Interval]
---------------------------+-------------------------------------------------Pr(decision=Access e) |
.1570407
.0738755
.0555358
.3414259
Pr(decision=Mixed de) |
.0315381
.015905
.0077749
.0729912
Pr(decision=Access r) |
.8114212
.0832782
.6102793
.9296257
3. Discussion
Analysis of federal district and circuit court cases that ligated access claims under the
citizen suit provisions of the Clean Air Act, Clean Water Act, and Resource Conservation and
Recovery Act demonstrates the complexity of judicial policymaking. In this thesis, litigants
sought access to federal courts to enforce statutory standards and limits irrespective of identity,
19
statute, or time period. Yet the hypothesized relationship between ideological preferences and
decisions on access claims varied with the court level and time period. At the district court level,
there was no overall significant relationship between ideological scores and decisions on access,
but there may have been one between 1970 and 1977. In courts of appeals, the ideological score
of the opinion-writing judge did not have a significant relationship with decisions, but the mean
ideological score did have a significantly positive relationship.
In the process of developing environmental citizen suit provisions, Congress sought to
balance the benefits of expanded participation in their enforcement processes against the costs of
increased litigation. It structured the provisions and their incentives to determine a level of
access that would produce a more acceptable level of compliance with the statutes than existed in
the absence of public participation in the enforcement process. But once it adopted the
provisions, it rarely returned to amend them. For the most part, the task of determining the
prevailing level of access fell to the federal court system. Although district courts were given
jurisdiction over the initial access claims, analysis demonstrates that access policymaking is
largely done at the circuit court level. When petitioners seek to expand access, judicial decisions
do not seem to reflect underlying attitudes towards whether they are an environmental group or a
corporation. Instead, decisions to expand or restrict access are determined by the ideological
composition of circuit court panels.
Over time, circuit court decisions create a body of law that governs district court judges
and their decisions on access. When the relationship between ideological scores and decisions at
the district court level was compared in two periods, it was shown that there was a significantly
positive relationship in the 1970 to 1977 period, and not one in the period after 1987. One
explanation of this effect, which is especially striking considering the amendments to expand
access, is that circuit court judges began to create policy that restricted the ability of petitioners
to prevail on access claims at both court levels. This thesis does not perform analyses to
determine overall directional patterns in decision-making, but its findings suggest that the
interaction between structure of the citizen suit provisions and the institutional factors inherent to
district and circuit courts is responsible for the prevailing level of access across the judicial
system
4. Conclusion
Judicial scholars have posited that ideological attitudes and policy preferences drive
judicial decisions for some time, and the evidence produced in this thesis supports their position.
But it also speaks to the realization of policy through institutional choices.47 When Congress
committed federal resources to the conservation of the environment, it was forced to make
choices that would determine its level of success. The Clean Air Act, Clean Water Act, and
Resource Conservation and Recovery Act provide many examples of those choices, but are
particularly interesting because of their shared citizen suit provisions. In their structure and
purpose, the provisions empower two institutions in the enforcement of environmental standards:
private parties and federal courts. Together, they have collectively borne the responsibility of
determining the level of compliance with the statutes. Over time, the involvement of these parties
in the litigation of environmental citizen suits has led to a large number of decisions by federal
judges on access claims. Their decisions are individually related to their ideological preferences,
47
Komesar, Neil K. “Imperfect Alternatives: Choosing Institutions in Law, Economics, and
Public Policy.” Chicago: University of Chicago Press, 1994.
20
the institutional characteristics of their court, and the year. But all are products of decisions that
were made by Congress starting in 1970 and are continuing today.
21