Nine major environmental groups, along with the Endangered Species Coalition, are working actively to defeat the nomination of Judge Samuel Alito Jr. as a justice on the Supreme Court. The full Senate is expected to vote on the issue late next week or early the following week.
With two crucial environmental cases on the high court's docket this spring, the groups fear that Judge Alito's history of negative rulings on environmental issues will tip the balance in the closely divided body, allowing irreparable harm to environmental protection.
This opposition to Alito's nomination marks the first time since 1987 that environmental organizations have opposed a Supreme Court nominee (Robert Bork, President Reagan's choice, who was rejected by the Senate). Eight justices have been appointed since then.
The urgency of this battle is underlined by two cases the court will decide by July, involving the constitutionality of the Clean Water Act. These cases have broader implications for the Endangered Species Act and other federal laws that protect the nation's health and environment.
Both cases were brought by industry groups seeking to establish that Congress lacks the authority, under the Constitution's Commerce Clause, to protect streams and tributaries that flow into larger bodies of water. A second issue is whether Congress may protect wetlands adjacent to such streams. (Nearly all major environmental laws are based on the Commerce Clause, Article I, Section 8, Clause 3, which gives Congress the power to regulate interstate commerce.)
These cases, notes Doug Kendall of Community Rights Counsel, "threaten to reduce by up to 99 percent the streams, rivers and other waters currently protected by federal law. If confirmed, Judge Alito could cast a deciding vote in these cases."
Environmentalists' concern stems from a case where Judge Alito--contradicting rulings by five other circuit courts--found that the Constitution does not give government the right to regulate sales of machine guns that do not cross state lines, thereby signaling his willingness to restrict Congressional authority under the Commerce Clause.
Alito's position in that case was "extreme and unusual," said Glenn Sugameli, senior counsel at Earthjustice, in an interview with Environment News Service. "Judge Alito's record," continued Sugameli, "indicates that he 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."
Environmental advocates also fear that Judge Alito will limit citizens' access to the courts, based on a pattern of rulings in which Judge Alito appears to favor industries and large institutions over average citizens.
They cite the case of Public Interest Research Group (PIRG) of New Jersey v. Magnesium Elektron, in which a citizens group sued the chemical company under the Clean Water Act for polluting a river used by members of the group. The trial court found that Magnesium had violated the Act no fewer than 150 times.
Judge Alito provided the deciding vote in a 2-1 decision overturning the trial court, on the ground that PIRG lacked standing to sue because it did not prove harm to the environment.
As Sen. Dianne Feinstein (D-CA) noted during last week's Judiciary Committee hearings, Alito's decision, "if broadly applied, would have gutted the citizen lawsuit provision of the Clean Water Act."
Fortunately for the environment, three years later Alito's position was rejected by a 7-2 vote of the Supreme Court, in the case of Friends of the Earth vs. Laidlaw.
The groups working to defeat Alito are: Earthjustice, NRDC, Friends of the Earth, Sierra Club, The Wilderness Society, Greenpeace, National Environmental Trust, Community Rights Counsel and Clean Water Action.
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