[Note: This is the first of three articles on the Bush Administration's little-noted strategy of overturning and environmental protections actions initiated by state and local governments.]
While the Bush Administration and its conservative judicial appointees make a constant public show of their dedication to states' rights, their actions on environmental protection are increasingly moving in exactly the opposite direction. That is very bad news for Americans' desire for clean air, clean water and a healthy environment.
In the latest example of this say-one-thing-but-do-another, the Bush Administration last week filed a brief before the Supreme Court designed to immunize pesticide manufacturers from paying damages when their products cause harm.
The name of the case is Dow v. Bates. It involves a lawsuit brought by 29 Texas peanut farmers, seeking compensation for crop damage they say was caused by a Dow Agrosciences weed killer named Strongarm. According to the farmers, who sued for damages in a Texas state court, the pesticide nearly wiped out their entire crop.
But Dow intervened in federal court, where it persuaded a judge to to halt the farmers' lawsuit on the ground that the Federal Insecticide, Fungicide, and Rodentricide Act (FIFRA), preempts remedies provided under Texas state law. Hence the farmers would be prevented from winning damages under states' common law.
Now, with Dow v. Bates before the Supreme Court, the Bush Justice Department brief is arguing in favor of federal preemption over state law--which happens to be a reversal of its own established position against expansive federal preemption of state remedies under FIFRA.
In a summary of the situation, attorney Jason Rylander of the Washington-based Community Rights Counsel, writes that in Dow v. Bates, "The Supreme Court has an historic opportunity to level the playing field and remind the administration, Congress and the lower courts that federalism [the idea that states are free to innovate in policy matters not specifically addressed by Congress] is important. By rejecting preemption except where specifically mandated by Congress, the Court can protect the ability of states to regulate products and provide remedies to their citizens," says Rylander.
The Dow case is but one of several recent examples where the Bush Administration has acted to block state actions, as explained by Community Rights Counsel in a new book called Redefining Federalism. More about the book will be forthcoming in the next edition of BushGreenwatch.org.
