A Chief Justice Already Testing Environmental Law's Pillars

[struggle4progress]

<snip> On federal power, Judge Roberts's most noteworthy opinion, in a 2003 Endangered Species Act dispute over the "hapless toad that, for reasons of its own, lives its entire life in California," suggests he may be skeptical about the act's nationwide reach. Scarier still, his apparent view is shared by several other judges on the administration's short list, all of whom have expressed it in more strident language.

On the federal-state balance, Roberts helped the State of Alaska challenge U.S. EPA's decision to veto a state-issued air pollution permit. To Roberts's client, the federal action was "second-guessing" a state prerogative, but to EPA (and other states that supported EPA) it was an unremarkable exercise of oversight, authorized by the Clean Air Act. Justice O'Connor's vote created a bare 5-4 majority in favor of federal authority. Environmentalists worry whether future justices will hew closer to O'Connor, or tip the balance to the dissenters.

On state innovation, states' attempts to go beyond federal minimum standards often get preempted in court. Roberts recently was part of an appellate panel that voided the District of Columbia's ban on hazardous rail shipments, citing conflicts with federal railroad law. In contrast, the trial judge had found that D.C.'s goals of public safety and environmental protection merely complemented the federal regime. Reasonable minds differ on this issue, but an overly broad view of federal preemption would hamper other state environmental initiatives, including recent efforts to limit greenhouse gases.

On citizen enforcement, Roberts has argued for a restrictive theory of citizen suits that is closely associated with Justice Scalia, questioning whether courts may "exercise such oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue." As with the hapless toad, environmentalists fear that Roberts's glib tone betrays insensitivity to the long-term ecological and intergenerational interests that arise in environmental cases. <snip>

http://newswire.ascribe.org/cgi-bin/behold.pl?ascribeid=20050920.090411&time=09%2056%20PDT&year=2005&public=0

[unschooler]

1. A very limited view of federal power just doesn't work to protect

the environment. Maybe we need a Constitutional amendment to get around Commerce Clause issues, but the feds MUST be able to protect the environment, regardless of the habitat range of the toad.

[struggle4progress]

2. The same people who loudly profess "a very limited view" of Federal ..

.. power when it comes to protecting the environment or the poor, seem to have no problem whatsoever trying to use Federal authority to shut down a vote recount in Florida or to ask Congress to intervene in a one specific medical decision made by one specific husband with respect to his long brain-dead wife.

They believe in "original intent" when it serves their needs; but when they want to push the "American as a Christian nation" theme, they'll conveniently overlook the unanimous passage of the Treaty of Tripoli very early in the Republic's history.

There's no reason whatsoever to believe that any of the high-falutin' noise these folk make about "principles" is anything but insincere propaganda for partisan gain.

[unschooler]

3. Bingo! You are right on all points!

[Kolesar]

4. Was Roberts even *asked* about environmental protection issues...

...in the confirmation questioning?

[blindpig]

5. not that I've heard

Roberts is the nominee of the business wing of the rethugs, the concentration of attention has been on social issues, a masterful bit of misdirection IMHO. He will rule consistantly for business against the environment, regulation and labor. The next nominee will be from the christofascist wing.

If Pombo doesn't kill the ESA Roberts will. Your avatar will be in demand.

[Kolesar]

6. What a ruse

They sold Roberts on those "morals" issues. Once placed, he is going to take away the consumer and health protections away from the very people who put him in power...

There's wooden shoes, too.