The Courts As The Last Bastion Of Hope For Our Environment

Courts and Greens

Given the history of the GOP regarding giving big business a free hand in mining, drilling, forestry and pollution--and given the enhanced approach to kowtowing to big corporations under the fascist imperialistic regime of Emperor Bush--the federal courts have proven to be the only stopgap measure and barrier against the runaway raping of our environment. It has been the courts that have forced the Bush administration's hand on pollution, protecting wildlife, preserving our national parks and forests, and standing up for regulation of mining and drilling interests.

One need only look at this process of the courts standing against the policies and practices of the GOP and Emperor Bush's policy of promoting the rape of our environment to see why the GOP, ultra-conservatives and big business want to limit the role of the courts by advocating against "judicial activism" (unless it is favorable to the ultra-conservative ideology), class action suits, qui tam initiated suits, and for capping punitive awards in cases against the interests of big business.

Our task as stewards of the environment is to live with nature in such a way as to assure that our future generations can live with good health. I already believe that the pollution in our water, air and soil are causing a rise in many diseases and conditions. We look at the effects pesticides, fertilizers and hormones are having on our birds, mammals, fish and plant life and make no connection between the damage done to them and our own deteriorating health conditions. As a matter of theoretical postulation, I believe there is a specific connection. Now we have to find the integrity and funding to investigate and test that theoretical hypothesis. But we have some serious opposition to doing so, especially while the GOP and Emperor Bush have anything to say about it.

A little over four years ago, when the forces of deregulation were riding high, this page observed that the federal courts could turn out to be the last, best hope for slowing the Bush administration’s assault on the body of bipartisan environmental law established over the last four decades and, by extension, on the environment itself.

As things have turned out, this is pretty much what has happened. In the last few weeks alone, federal judges at the district or appellate level have:

• Rejected efforts to weaken protections for the national forests, including the old-growth forests of the Pacific Northwest.



• Overturned a government plan that would have hastened the decline of endangered salmon in the Pacific Northwest.



• Rebuffed challenges to clean air laws governing pollution from older power plants.



• Invoked the Clean Water Act to prevent mining companies from laying waste to streams and valleys in Appalachia.

In some cases the courts have done more than just play defense. In the Supreme Court ruling on global warming two weeks ago, the court not only protected existing law but aggressively enlarged its reach, ruling that the Clean Air Act all but required the Environmental Protection Agency to regulate emissions of greenhouse gases.

The courts, of course, have hardly been alone in this struggle. When the history of this administration’s endless tussles with environmental law and practice is written, the various advocacy groups that challenged the administration in court at nearly every step of the way will occupy a major role. So, too, will an often underappreciated group, the states’ attorneys general, particularly those from California and the Northeast.

It was Eliot Spitzer, for instance, then New York’s attorney general and now its governor, who helped revive a dormant provision of the Clean Air Act known as “new source review” to force the cleanup of dirty plants grandfathered in under the original law. And it was New York, 11 other states, three cities (including New York City, which served as the lead city petitioner), American Samoa and various environmental groups that together brought the global warming case to the Supreme Court.

Yet all of these efforts would have been for naught had the courts not read the law the same way. Some cases, of course, were easier than others. In the salmon case, for example, the government advanced a weak (and preposterous) salmon “recovery” plan that, among other things, argued that dams were immutable parts of the landscape, like mountains, and could not be tampered with to help fish. James Redden, a federal district court judge, saw through this nonsense and ordered the government to draw up a more plausible plan. This week, he was resoundingly upheld by the Ninth Circuit.