Philosophical inclination of federal judges and Environmental Law

With the pending retirement of Justice O'Connor and a possible retirement of the Chief Justice, most discussions center about how new justices might affect abortion / privacy rights and the Separation of Church and State.  But for my money, the biggest potential impact of any new appointment might be on Environmental Law, and new strategies in protecting the environment. 

Consider, for example, a freshly minted Ninth Circuit decision in Defenders of Wild Life v. Flowers.  The 2-judge conservative majority (Judges Noonan and Rymer) upholds a determinaiton by the Corps of Engineers that development projects in Arizona would have no possible impact on the Arizona pygmy-owl and, thus, Fish and Wildlife Service did not have to be consulted before a permit was issued.   The emphasis of the majority opinion is on the unlimited discretion of the Corps not to consult the Service (a conclusion seemingly at odds with the regulaitons cited by Judge Ferguson's dissent), not on the protection of the pygmy owl.  In contrast, the dissent makes no sweeping pronouncements regarding the scope of agency power in this context, but interprets the regulations with emphasis on resolving any doubt in favor of protection of wild life.  The glaring distinction between two approaches could not be any more clear.   

I don't think I would be going out on any limbs by suggesitng that a Bush nominee is farm more likely to be closer to Rymer or Noon than to Ferguson.  If that is the case, those who care about the environment may have to adopt new strategies to protect it.  As was suggested during an NPR program several months ago, this might be the time to actively educate the public about the dangers certain human activities poses to the environment.  It is also time to propose realistic and creative solutions that would take into account both environmental protection and our need to exist as a part of that environment (not to be confused with Bush initiatives, like Clear Skies, Healthy Forests, etc).  Once the public is educated, Congress would have to react - most members of Congress may not give a !##$% about the environment, but they all like to get re-elected.