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Environmental Enemy #1
Greens vs. Alito


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Jonathan H. Adler

In the midst of the holiday season, five environmentalist groups joined the ranks of liberal activists opposing the confirmation of Judge Samuel Alito to the Supreme Court. Making a string of exaggerated and inaccurate charges, the groups allege that Judge Alito is “extreme” and “cannot be trusted” on the Supreme Court. Glenn Sugameli of Earthjustice warns that Judge Alito “would pursue his own extreme legal theories to create new barriers that prevent the enactment and enforcement of national laws that protect families and communities from pollution.”

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Earthjustice is not alone in opposing Alito’s confirmation. Friends of the Earth (FOE), the Sierra Club, Greenpeace, and the National Environmental Trust have announced their opposition as well, echoing Earthjustice’s alarmist anti-Alito attacks. FOE’s Sara Zdeb warned, “Judge Alito threatens to drive the Court in a decidedly anti-environment direction.” When the Alito nomination was announced, the Sierra Club called him “a nominee who may represent great danger to Americans’ ability to protect our clean air, clean water, and special places.” Move over President Bush; for the next month Samuel Alito is Environmental Enemy Number One.

Of particular concern to environmental groups is Judge Alito’s apparent respect for principles of federalism. They fear that Judge Alito’s demonstrated willingness to enforce constitutional limits on federal power could hamstring federal environmental protections. Not only do green groups exaggerate the threat, but they misrepresent Alito’s opinions as well. According to Earthjustice, “one of [Alito's] dissenting opinions concluded that a Congressional ban on possession and transfer of machine guns was unconstitutional under the Commerce Clause.” This is false. In United States v. Rybar, the case to which Earthjustice refers, Judge Alito voted to strike down the federal law insofar as it prohibited the simple possession of machine guns. This, he reasoned, was beyond the scope of Congress’s power to regulate interstate commerce. But he did not conclude that the ban on the transfer of machine guns was unconstitutional. To the contrary, his opinion explicitly noted that the prohibition on transferring such weapons–the application of the law more clearly related to interstate commerce–was not before the court and was not implicated by his opinion.

Viewed in its entirety, and in context, Alito’s Rybar dissent is hardly as “extreme” as environmentalist groups and others maintain. Rybar was decided in 1996. Just one year earlier, in United States v. Lopez, the Supreme Court struck down a federal law prohibiting the possession of guns in school zones on the grounds that such gun possession did not substantially affect interstate commerce. The Court reached this result even though the defendant, Alfonso Lopez, had brought a gun to school as part of a commercial transaction. In Rybar, Judge Alito reasonably concluded that a federal law prohibiting simple possession of a machine gun, irrespective of any relationship to interstate commerce, could not be distinguished from the law struck down in Lopez. Unlike many other federal criminal statutes, the law at issue did not require federal prosecutors to demonstrate that the gun had moved in interstate commerce. Adding such a jurisdictional element, Alito was quick to add, would ensure the statute’s constitutionality, as might the addition of congressional findings on the need to regulate machine-gun possession.

Earthjustice claims Judge Alito’s Rybar opinion indicates “that he would support Commerce Clause challenges by polluters and developers to public health and environmental laws.” This too is a stretch. Laws regulating industrial pollution have a much greater connection to interstate commerce than prohibitions on simple intrastate possession. Most major environmental laws either regulate economic activity directly, contain extensive findings of the sort the statute in Rybar lacked, or both. Even the federal statute most vulnerable to a federalism challenge–the Endangered Species Act–is easily distinguishable from an isolated prohibition on gun possession.

Environmentalists find further evidence of Alito’s alleged adherence to radical federalist views in a 1986 memo which he wrote as a Department of Justice attorney, recommending that President Reagan veto the Truth in Mileage Act. Judge Alito’s alleged offense is that he had the temerity to suggest that laws governing used-car sales, like contract law generally, should remain the province of the states. This is a particularly odd basis for environmentalists to criticize Alito, as they regularly argue against federal efforts to preempt state regulation of automobiles, attacking the Bush administration for arguing that federal environmental laws limit state authority to adopt varying standards.

Environmentalist groups stress Judge Alito’s views on federalism, in part, due to their concern about two cases currently pending before the Supreme Court. “[I]f confirmed, Judge Alito would be ruling on two Clean Water Act cases now pending before the Supreme Court on whether this same Constitutional provision–the Commerce Clause–gives Congress the authority to protect any of America’s streams and wetlands,” warns the Sierra Club’s David Bookbinder. Justice Alito could vote to “radically restrict our ability to protect the vast majority of the nation’s waterways under the Clean Water Act,” warned FOE’s Zdeb. Not only does Zdeb misrepresent what is at stake in the relevant cases–which do not threaten federal jurisdiction over “the vast majority of the nation’s waterways”–he suggests that senators should oppose Alito based on how he might vote in a specific case in which he will participate when confirmed.

Because of his views on federalism, Alito is “the wrong choice to replace Justice Sandra Day O’Connor on the Court,” argues Bookbinder. Yet Justice O’Connor endorsed far more restrictive limits on federal power than any contemplated in Judge Alito’s opinions. Justice O’Connor authored some of the Supreme Court’s most important federalism opinions, including one of the few striking down federal environmental legislation, and dissented from last term’s decision upholding the federal regulation of medical marijuana. Thus, even if Judge Alito does turn out to be an aggressive proponent of federalism on the Supreme Court, his replacement of Justice O’Connor would still not alter the Supreme Court’s “balance” on this issue.

Environmentalists also take issue with Judge Alito’s vote in Public Interest Research Group of New Jersey v. Magnesium Elektron, a decision that, in Earthjustice’s words “slashed citizens’ access to courts under the Clean Water Act.” Yet Magnesium Elektron did no such thing. Rather it was a straightforward application of the Supreme Court’s holding in Lujan v. Defenders of Wildlife. If any decision “slashed” citizen suits, it was Lujan, not Magnesium Elektron. Indeed, environmentalists lamented Lujan on this basis at the time, and one dissenting justice called the decision a “slash-and-burn expedition” through the law of standing.

Under Lujan, environmental citizen-suit plaintiffs were required to demonstrate that they suffered “injury-in-fact”–that is, actual, concrete harm. This posed a problem for the plaintiffs in Magnesium Elektron, for they failed to show that the corporate defendant’s pollution caused any environmental harm. All three judges in the case agreed that this finding undermined the environmental plaintiffs’ claim of standing. The only dispute in the case was whether the plaintiffs should get another opportunity to make their case. Several years later, the Supreme Court loosened the requirements for standing, holding that environmental plaintiffs could allege harm to themselves without showing any harm to the environment, but this hardly makes Alito’s position “extreme.” To the contrary, Judge Alito’s vote in Magnesium Elektron, like the whole of his judicial career, illustrates his fidelity to Supreme Court precedent.

Alito’s environmental critics gloss over these particulars to build their alarmist case against Alito. Based upon his vote in Magnesium Elektron and his brief discussion of standing and other limits on federal court jurisdiction, Earthjustice proclaims Alito has a “desire to restrict access to justice.” In true alarmist fashion, Earthjustice warns Alito’s confirmation could “dangerously tip the balance on the Supreme Court” and threaten to overturn a 7-2 decision. (You do the math.) Continuing in this hyperbolic vein, Earthjustice claims Judge Alito’s record suggests “he would close the courthouse doors to all Americans acting to protect the environment and public health” (emphasis added). That’s right. According to Earthjustice, if Judge Alito has his way, “all Americans acting to protect the environment” will be denied their day in court.

Earthjustice and Friends of the Earth suggest Alito is biased in favor of industry because he “has voted to overturn the Environmental Protection Agency’s actions on behalf of polluters, but never on behalf of ordinary Americans.” This is highly misleading, not least since Judge Alito heard relatively few such challenges during his time on the bench. Even so, Judge Alito has ruled in support of more stringent environmental regulation numerous times and has upheld controversial EPA decisions where the law dictated that result, even though the outcome seemed unreasonable or unfair, as in Southeastern Pennsylvania Growth Alliance v. Browner.

Environmentalists further criticize Judge Alito for joining a majority opinion in W.R. Grace v. EPA, striking down an EPA drinking water cleanup standard and remediation plan. Yet, as the opinion noted, the EPA had provided no basis whatsoever for its proposed standard, and maintained that a more controversial remediation plan was necessary despite the lack of evidence for this claim. It is one thing to defer to agency judgment, as Alito has done time and again, but deference does not mean abdication (a point environmentalist groups clearly embrace when mounting legal challenges to Bush Administration regulatory reforms). Even expert regulatory agencies must explain the bases for their decisions, and it is hardly “anti-environmental” to uphold challenges when they fail to do so.

The five environmental groups have trumpeted their anti-Alito announcement by proclaiming that this is the first time national environmental groups have opposed a Supreme Court nominee since Robert Bork in 1987. According to its press release, “Earthjustice did not oppose any of the eight Supreme Court nominees between Judge Bork and Judge Alito.” This may be true insofar as Earthjustice has not officially opposed other nominees on its own. Yet Earthjustice and other environmental groups have clearly contributed to the opposition in other nomination fights. Earthjustice is a member of the Alliance for Justice, which regularly opposes conservative Supreme Court nominees and has spearheaded the opposition to Judge Alito. Other environmental groups belong to the Alliance as well, including the Natural Resources Defense Council (NRDC), the League of Conservation Voters Education Fund, the Sierra Club Foundation, and the Wilderness Society. In addition, the Wilderness Society’s David Alberswerth and NRDC’s Greg Wetstone both serve on the AFJ’s Board.

Environmental organizations have also become increasingly active in the judicial nomination fights since the election of President Bush. Earthjustice has led environmental opposition to several of Bush’s lower court nominees, including picks for several appellate courts and the U.S. Court of Claims, as I have noted in previous columns for NRO (see here and here), and raised concerns about the confirmation of John Roberts as Chief Justice as well.

The misleading environmentalist attacks on Judge Alito’s record have polluted the debate over the merits of a fine jurist. Contrary to these alarmist claims, Judge Alito’s record is not that of a judge unduly skeptical of environmental regulations, let alone that of an anti-environmental zealot. He has ruled both for and against environmental regulations in accordance with the applicable law and precedent, rather than a predetermined preference for a given policy outcome. He has deferred to regulatory agencies where appropriate, but he has not let government regulators shirk their obligations to justify and explain the basis for their decisions. Viewed in its entirety, Judge Alito’s record is neither “pro-” nor “anti-environment”; it’s pro-law. His record shows a profound respect for precedent and legal principles rather than a concern for a given policy outcome. He is a serious, principled, and exceedingly qualified judge who merits confirmation, the latest environmental attacks notwithstanding.

NRO Contributing Editor Jonathan H. Adler is associate professor of law and associate director of the Center for Business Law and Regulation at Case Western Reserve University.



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