Something that has been largely lost in all the nomination hearings for Bush's appointments to the Supreme Court is the extent to which they continue the trend of systematically dismantling Federal powers to protect the helpless, and that includes the environment. Much of Federal environmental law rests on a rather generous (I would say "enlightened") reading of the Commerce Clause of the Constitution, which surely reflects the spirit, if not the letter, of what the Founding Fathers intended our government to do for us. The strict constructionists appointed to the Court, beginning with Scalia and Thomas, but continuing through the recent appointments of Roberts and Alito, would like to roll the clock back to the eighteenth century, and strip the government of such powers. These are not conservative Justices. These are truly, in the words of Cass Sunstein's book, "Radicals in Robes."
With the new court, including Alito and Roberts, in session, this issue has already come to the fore. The Court agreed to hear the cases Rapanos v. United States and Carabell v. Army Corps of Engineers, and has already completed hearing arguments. A decision is due in the Fall (and I wouldn't be surprised if it were cynically delayed until after the November elections, to avoid reminding people of what their Bush-appointed court is doing to them). In these cases, developers who, in an in-your face tactic, blatantly ignored wetlands protections laws and were caught, are suing to have the applicable provisions of the Clean Water Act thrown out on constitutional grounds. The attack is so broad that even the Bush Justice Dept. is defending the Government's rights under the Clean Water act. Is this a real defense? So far, it seems hardly to have been spirited, and I doubt that winning this case is particularly high on the agenda of the Justice department.
There is a very real danger that Alito and Roberts will tip the court against the Clean Water Act, effectively gutting its ability to protect Americans against water pollution. Both justices have a history of ruling in favor of corporate interests, and ruling for a very narrow view of Federal powers. During his brief time on the appellate bench, for example, the Bush administration reached a new low in its war on the environment, when Interior Dept. official (and former coal lobbiest) Steven Griles rewrote a key portion of the Clean Water Act regulations to declare that mine waste from mountain top removal coal mining was "benign fill" and could be dumped in waterways without restriction (even though they are clearly a form of pollution that kills fish). A federal court rejected that change, but the US 4th Circuit court, with the enthusiastic endorsement of John Roberts upheld Griles' re-write, allowing unrestricted pollution of the waterways by coal mine tailings. Even more ominously, in Rancho Viejo LLC v. Norton, Roberts questioned the Federal Government's authority under the Commerce Clause to enforce the Endangered Species Act in protecting a threatened toad species against the effects of development.
Alito's radical view of the Commerce Clause is best known from his dissenting opinion (in Chittister v. Department of Community and Economic Development) stating that the Federal Government does not have the right to regulate trafficking in machine guns. Alito also voted to restrict the ability of citizens to sue their governments to get them to protect their rights and properly enforce the laws -- a crucial tool in obtaining environmental justice, especially in days such as theses where the President is hostile to all forms of environmental protection. In Public Interest Research Group v. Magnesium Elektron, Alito cast the deciding vote in a 2-1 ruling that not only blocked certain rights of citizens to sue polluters under the Clean Water Act, but threw out a $2.6 million fine against Magnesium Elektron for violating the act. The decision was later thrown out by the Supreme court, but in that, Antonin Scalia voted with the dissent. You can see the writing on the wall.
Lest it be thought that the "hand's off" view of Federal power is a result of a consistently applied judicial philosophy, one should note that in the views of the new Radical Supreme Team it doesn't seem to apply to keeping the government's hands out of peoples' private lives. Roberts joined the dissent in a recent Oregon Right to Die case, writing in favor of an expansive view of Federal powers to invalidate state law on the basis of the Controlled Substances Act. (Alito was not yet on the bench at the time). This dissent gives the lie to Roberts claims about his view of government intrusion in such issues during the confirmation hearings.
By the time these guys get through with legislating from the bench, the only way to restore the ability of Federal laws to protect the environment will be through a constitutional ammendment. What do you think will be the chances of that?
Be scared. Be very scared.
It's been a long time since I last wrote. The steady stream of depredations from Washington was frankly too discouraging for me to handle, and I felt like a break. Now, with attention turning to the November midterm elections, it's perhaps time to take stock. As the Bush spinmeisters stated in connection with the State of the Union the country is on the right track. Indeed, I'd agree we're on the right track, but going exactly in the wrong direction.
Sadly, where I pick up is almost exactly where I left off nearly two years ago (Our previous post, back in June, 2003, was Four Billion Dollars a Month, and no WMD). Shortly after W was re-elected, the US agency charged with hunting for WMD concluded its work, with a definitive conclusion that there were no signs of an active WMD program in Iraq. W shrugged off calls for an investigation of intelligence failures, claiming that his re-election was referendum enough on his policy, and that he didn't owe the American people any more answers. He doesn't take the needless loss of American and Iraqi lives very seriously, evidently; in a cutesy slideshow for the press corps, he was shown mocking the failed WMD hunt (slide of W looking behind a curtain in the Oval Office -- "No WMD here!"). The revelations of the systematic deception of the American people continue to mount. In an upcoming issue of Foreign Affairs, former top CIA official Paul Pillars writes:
"Official intelligence on Iraqi weapons programs was flawed, but even with its flaws, it was not what led to the war," [the administration] "went to war without requesting -- and evidently without being influenced by -- any strategic-level intelligence assessments on any aspect of Iraq ... It has become clear that official intelligence was not relied on in making even the most significant national security decisions, that intelligence was misused publicly to justify decisions already made, that damaging ill will developed between [Bush] policymakers and intelligence officers, and that the intelligence community's own work was politicized,"
Part of the effort to mislead the public has blossomed into PlameGate, with the indictment of Scooter Libby and recent revalations that the outing of CIA agent Valerie Plame, in an effort to discredit critics of the WMD case for war, was authorized by high level Administration officials. This is all compounded by a presidential power grab, with revalations of secret prisons, kidnappings not subject to any legal review, subcontracted torture, and lately spying on American citizens without any warrant or legal justification. The administration says the spying is needed to fight terror, but without any judicial oversight, who really knows who they are spying on? Do you feel like you can trust the Administration that outed Valerie Plame or fabricated the WMD case?
Meanwhile, costs continue to mount. Last time we wrote, projected costs were estimated at a trillion dollars. Now, some estimates by Nobelist Joseph Stigler say the tab could ultimately reach 2 trillion dollars. That's besides the sad toll in lives lost and lives shattered by horrible injuries. This is the war, remember, that was supposed to pay for itself with Iraqi oil production (which, by the way, has yet to approach pre-war levels).
If all the tough talk worked against the dire threats facing the world, one could at least say the ends might have been worthwhile. However, the Bush foreign policy is an abject failure when it comes to making the world a safer place. All we've done is scare other countries into thinking they need The Bomb. North Korea came first, and now Iran is well along the way.
In coming weeks, I'll provide a review of some of the "lowlights" of the Bush war on science and on the environment that have happened in the past year. I'll intersperse these remarks with continued updates on current affairs, like the attempts to muzzle NASA's Jim Hanson.