With Washington now in the almost monolithic control of politicians hostile to environmental safeguards, many environmentalists are looking to states and local governments as the only hope for environmental progress.

But they could be in for another disappointment: the Bush Administration is actively working to ensure that these local "laboratories" of environmental democracy never yield results.

A timely new book by the DC-based Community Rights Counsel called Redefining Federalism: Listening to the States in Shaping "Our Federalism," explains how the Supreme Court has been ignoring the views of states in a long series of rulings over the last 15 years.

The rulings purport to protect what the Court calls "Our Federalism." The result is an incoherent form of federalism that looks unfavorably at governmental innovation at every level.

Published by the Environmental Law Institute, the book traces the roots of this anti-government federalism to a cadre of far-right libertarian scholars and activists. Among the most prominent is University of Chicago law professor Richard Epstein.

In a series of books and articles, Epstein has argued that the New Deal and most federal and state health, labor and environmental safeguards enacted since the 1930’s are unconstitutional.

Like-minded activists such as Michael Greve of the American Enterprise Institute, Clint Bolick of the Institute for Justice, and Adam Thierer of the Cato Institute have taken this scholarship, added a strong antipathy to state and local environmental and other protections, and called it "federalism." Greve, for example, calls states the "real enemies of real federalism."

As Redefining Federalism clearly explains, this radical right-wing agenda has nothing at all to do with federalism. "Federalism" the authors write, "is about assigning government authority to the correct level of government in our constitutional structureï... Federalism is primarily about allocating the powers the government does have, not about determining what government can do in the first place."

Libertarian activists reject this neutral idea of federalism. Instead, they want to use federalism to promote their radical anti-government agenda and divide Americans, making federalism "an ideological affair," as Greve has written.

Anti-government, libertarian federalism plays out in the Bush administration in two ways, according to Redefining Federalism. First, as BushGreenwatch reported in its December 3 edition, the Administration has argued that federal law broadly preempts state and local efforts to protect their citizens from environmental and other harms.

Second, the strong imprint of libertarian federalism can be seen in the Bush Administration’s judicial nominees. Redefining Federalism notes that William Myers, Bush’s appointee to a seat on the U.S. Court of Appeals for the Ninth Circuit, and Janice Rogers Brown, Bush’s pick for a seat on the D.C. Circuit (often called the second most important court in the country) share Greve and Epstein’s libertarian views.

Bush appointees from the libertarian federalist camp, William Pryor, Jeffrey Sutton, and D. Brooks Smith, now have seats on various federal courts of appeals around the country.

"Environmentalists need leadership at all levels of government," says Community Rights Counsel's Doug Kendall. "They don't need politicians who pay lip-service to federalism while striking out at state and local environmental safeguards."

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