Extensive recent media attention has focused on setbacks for environmentalists at the hands of the Tea Party activists bent on limiting the ability of the federal government to protect the environment. Indeed, it seems Tea Party elements are comfortable filling our harbors with substances far more toxic than tea.
But a sea change in environmental law is occurring without out as much notice, one that is disconcerting, and calls out for heightened attention, and action.
In recent years, our courts have issued rulings undercutting the Clean Water Act, lifting deep water drilling moratoriums, expanding mountain top removal, and weakening other environmental protections.
On Tuesday, just days before Earth Day, the Supreme Court heard oral argument in American Elec. Power Co. v. Connecticut, which centers on whether a string of states can proceed with a lawsuit against coal-fired power plants to force restrictions on the pollutants they emit. The Obama administration, which continues to disappoint environmental groups, urged the Supreme Court to shut the lawsuit down, claiming that the Environmental Protection Agency (EPA) will eventually get around to crafting regulations curtailing emissions of carbon dioxide.
The lawsuit lodged by Connecticut, New York, California, Rhode Island, Vermont, Iowa and New York City, says the EPA is taking far too long to implement such regulations. The Los Angeles Times reports that during oral argument the justices, both liberal and conservative, seemed ready to side with the administration and the power companies, including American Electric Power, Xcel Energy, Duke Energy and Southern Co., and toss the lawsuit out of court.
It is not surprising that many environmentalists are deeply disturbed by the anti-environmental court rulings and the administration’s unwillingness to remain firm on even the most vitally important environmental issues.
From its earliest days, the modern environmental movement has taken pride in its superb litigators. In the 1970s and 80s -- when the federal judiciary still aspired to objectivity and neutrality -- our legal gladiators routinely won landmark cases. In more recent years, however, right-wing extremists have successfully packed the courts with anti-environmental zealots who ignore legislative intent and scientific evidence.
Environmentalists are up against organizations like the U.S. Chamber of Commerce, which has been funneling hundreds of millions of dollars into state judicial races and helping to groom potential federal judges for the bench, ones inclined to support big business interests without regard to established law and precedent. The chamber’s greatest triumph to date was the Supreme Court’s 5-4 opinion in Citizens United v. FEC, holding that no limits could be placed on corporations’ independent political expenditures.
Nearly two-thirds of the federal judiciary was appointed by Republican presidents, and a large percentage of recent Democratic appointments were made principally with an eye to avoiding a conservative-led filibuster in the Senate.
Unfortunately, this ideological shift in the judiciary has largely escaped public notice. Groups like ACS must find ways to generate public support for the selection and appointment of jurists to the courts who are respectful of legislative intent, stare decisis, and science.
Well-funded right-wing organizations help corporate interests skew the federal bench and the debate over sound environmental policy by producing reams of so-called expert scholarship that trumpet deregulation and the original intent of statesman-philosophers in an 18th century agrarian nation, as well as deny or downplay global warming. Of course, the "original intent" of the Framers was to conquer a wilderness -- not protect the last remnants of it that remain two centuries later.
Recent debate over environmental policy has been shaped by these right-wing promulgators of sound-bite philosophies that are blithely indifferent to science, reason, or the public good. And they are enjoying an appalling degree of success.
As a result, the values that underpinned the first Earth Day and that are still shared by the vast majority of Americans are being quietly subverted by all three branches of government. In the years ahead, those of us who care about a healthy, sustainable environment must play a much more active role in supporting or opposing judicial nominees. At the same time, we must work much harder to win the war of ideas in law schools and in the legal community.