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Speculation is still rampant that Chief Justice William H.
Rehnquist or another member of the Supreme Court will resign
in the near future providing President Bush with his first
opportunity to appoint a new justice to the Supreme Court.
Opponents of environmental safeguards are trying to use federal
courts to attack the bedrock of environmental safeguards,
including the Clean Air Act, the Clean Water Act, and the
Endangered Species Act, according to Doug Kendall, executive
director of the Community Rights Counsel (CRC). Given the
narrow margins in environmental cases before the Supreme Court,
a single new appointment to the Court could have a tremendous
impact on environmental protection, which is why groups on
the far-right recently announced a $18 million campaign to
confirm whomever President Bush names to the Supreme Court.
President Bush has called Antonin Scalia and Clarence Thomas
his favorite justices. These justices have expressed views,
often in dissent, that would dramatically undercut environmental
protections. The confirmation of another justice sharing the
judicial philosophy of Justices Scalia and Thomas could severely
undercut environmental protections over the next several decades.
The Supreme Court has played a critical role in shaping many
regulations, and in the past five years alone it has ruled
on:
- the Environmental Protection Agency's authority to promulgate
national ambient air quality standards (Whitman v. American
Trucking Associations, 2001);
- EPA's authority to prevent state agencies from issuing
unreasonable Clean Air Act permits (Alaska Department of
Environmental Conservation v. Environmental Protection Agency,
2004);
- the extent of federal jurisdiction to protect water and
wetlands (Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers [SWANCC], 2001);
- the scope of parties' liability under the Superfund hazardous
waste cleanup law (Cooper Industries v. Aviall Services,
2004);
- the Department of Interior's obligation to protect wilderness
and potential wilderness areas (Southern Utah Wilderness
Alliance v. Norton, 2004);
- environmental review of agency actions taken under international
free-trade agreements (Department of Transportation v. Public
Citizen, 2004);
- the scope of pesticide manufacturers' common-law liability
for damage resulting from use of their products (Bates v.
Dow Agrosciences, 2005);
- whether and when state and local agencies' land-use regulations
run afoul of the Fifth Amendment "takings" clause
and its "just compensation" requirement (Tahoe-Sierra
Preservation Council v. Tahoe Regional Planning Agency,
2002); and
- preemption of state and local governments' ability to
regulate vehicle emissions (Engine Manufacturers Association
v. South Coast Air Quality Management District, 2004). [1]
Between 2003 and 2004, ten percent of the cases heard by
the Court concerned environmental law.
According to Kendall, the very future of environmental law
rides on decisions over the next few year regarding the composition
of the Supreme Court: "The Supreme Court is the final
arbiter of almost every important environmental question.
If environmentalists aren't careful, we could wake up one
morning to find our fundamental environmental safeguards wiped
out by a stroke of the Supreme Court's pen."
It remains unknown whom President Bush will nominate, but
many of the names mentioned for consideration bode poorly
for the environments.
One name sometimes mentioned has been Janice Rogers Brown,
who views the federal government as a "leviathan, crushing
everything in its path." [2] With her extreme views on
issues such as regulatory takings and her favor of "Lochner-era"
attacks on government regulations, Brown's appointment to
a lifetime seat on the Supreme Court could spell disaster
for environmental safeguards.
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SOURCES:
[1] Earthjustice fact sheet.
[2] National Senior
Citizens Law Center report.
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