News and Features
The contrasting environmental records of Vice President Gore and Governor George W. Bush will be hotly debated during the presidential campaign, but the potential impact of their appointments to the Supreme Court should be of equal, if not greater, concern. If, as President, Bush were to appoint Justices with views similar to those of Antonin Scalia and Clarence Thomas, the scope and strength of federal environmental law could be gravely weakened.
To date, the Rehnquist Court's environmental record has been mixed. While no darling of the greens, neither has it been consistently "brown." As evidence of the Court's lack of a clear environmental vision, consider two nineties cases brought under the same law--the Endangered Species Act. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Court strengthened the act by broadly interpreting the requirement of "harm" necessary to trigger its protections. Although a lower court had interpreted "harm" to mean actions causing the direct injury or death of an endangered species, the Supreme Court broadened the meaning to include indirect actions that impair its essential behavior patterns. In the Sweet Home case, the Court prohibited logging of old-growth forests not because it killed spotted owls but because it destroyed their habitat, jeopardizing their long-term survival. As a result, the Endangered Species Act's reach was significantly extended to cover not only actions likely to cause the injury of a species but the range of actions that adversely modify its habitat. In Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation, however (see below), the same Court erected significant obstacles to citizens' suits that seek to enforce the act.
The lack of a consistent pro- or anti-environment stance for the Court as a whole, however, does not mean that particular Justices' decisions in environmental cases have been random. In a recent analysis of the Supreme Court's environmental decisions over the past three decades, Georgetown law professor Richard Lazarus found two current Justices with consistent anti-environmental voting records: Scalia and Thomas. Their anti-environmental votes and the voting patterns of other current (and future) Justices can best be explained by focusing not on their views toward environmental protection per se but rather toward two distinct political issues--separation of powers and the protection of private property rights. As a general matter, Justices who believe in vigorous checks and balances between the branches of government (such as a strong role for the judiciary in reviewing agency action) and the right of government to restrict uses of private property will be more likely to decide in favor of environmental protections. These two predictors become most evident in reviewing the two major fault lines currently running through the law--citizens' access to courts and the scope of private property rights.
Virtually all of our major environmental laws contain citizen-suit provisions, providing a legion of private attorneys general to supplement the government's role in enforcing environmental laws. For citizen suits to vindicate the protections promised by those laws, however, private parties must be able to get into court in the first place. And to do so they must satisfy the requirements of "standing." They must demonstrate (1) that they have suffered an injury in fact; (2) that the injury is the result of an act forbidden under the law; and (3) that the court can provide redress. Primarily because of its narrow view of what constitutes an injury, the Rehnquist Court has until recently made it increasingly difficult for environmental plaintiffs to meet the requirements of standing.
In two of the Court's most significant decisions of the nineties, the Lujan cases, Justice Scalia wrote that plaintiffs must demonstrate specific links of causation between the challenged act and the claimed harm to the plaintiffs. In the case of actions alleged to threaten endangered species, the Court required plaintiffs to show that they had a particular economic or physical connection to the species, expressly ruling out aesthetic or recreational injuries. The net effect was to restrict citizens' access to the courts. Some lower courts have since denied standing to plaintiffs unable to show particularized harm from a polluter's specific discharge. Proving this is well nigh impossible, because it is unusual that a harm resulting from pollution can be traced back to a single source. Usually, the degradation of air and water quality occurs over a long period of extended pollution from multiple sources.
The underlying logic for closing the doors of courts to many environmental concerns lies in separation of powers. Justice Scalia argues that the executive branch, not the public or the courts, is responsible for seeing that the laws are faithfully executed. If citizens are concerned about agencies' poor compliance with statutory mandates they should go to Congress for a legislative fix or to the executive branch for a political resolution. The problem with this pat answer, of course, is that Congress provided for citizen suits expressly to insure that the executive branch did enforce the laws. Recall how Reagan Administration appointee Anne Gorsuch neutered the Environmental Protection Agency.
Recently the Court reversed its holdings on environmental standing in midstride. In Friends of the Earth v. Laidlaw Environmental Services (2000), the Court breathed life into citizen suits, holding that plaintiffs do not have to show an actual physical injury to the environment. Eliminating the need for precise tracing of cause and physical effect, the Court stated that the plaintiff's reasonable concern about the effects of toxic pollutants released by the Laidlaw company on recreational, aesthetic or economic interests was sufficient for standing. This makes it much easier for a plaintiff to demonstrate injury. Justices Scalia and Thomas, it should be noted, strongly dissented.
The second major fault line--protection of private property rights--runs through what are called "takings" cases. The Fifth Amendment to the Constitution provides that private property cannot be taken for public use without just compensation. Housing construction along the coastline, for example, can adversely affect the environment by increasing beach erosion. Such use of private property may be restricted for the public benefit of coastal conservation. Yet if the government had to compensate every landowner whose property value diminished as a result of such zoning, the cost of enforcing such restrictions would be prohibitive. The problem for the courts lies in determining when restrictions are so complete and unfair that they constitute a "taking" for which the property owner must be compensated.
The Rehnquist Court has applied the takings clause aggressively and shifted the balance toward greater compensation for property owners. In the important decision Lucas v. South Carolina Coastal Council (written by Justice Scalia in 1992), for example, the Court required compensation for regulations that deprive the property owner of all economically valuable use of the land unless the government can prove the restriction is necessary to prevent what has traditionally been recognized as a common law nuisance. This not only switched the burden of proof onto the government but, in another part of the opinion, left the door open for lower courts to require compensation for less than total diminution (and some have done so). The net result has been expanded protections for private property owners and cost constraints on legislatures seeking to protect public resources. The case had a slim majority, so new appointments will surely be important in determining the trajectory of takings jurisprudence.
If Governor Bush appoints Justices who share the views of Scalia and Thomas on rigid separation of powers and strong protection of private property rights, the remarkable gains of environmental law over the past three decades will very likely be slowed or even reversed.
NPR's Living On Earth program broadcast a radio version of this story over the weekend of
September 1-3, 2000. Research support provided by the Investigative Fund of
the Nation Institute.
The Bush Administration is pulling a fast one on energy, and we
will all pay dearly for decades to come. By panicking the public with oil
industry propaganda of an energy shortage, the Bushies are building
support for the most reckless energy policy since the days before the
environmentalist movement, when blackened skies and lungs represented the
vision of progress.
To make things worse, to head off objections to their plans to plunder
virgin lands and obliterate conservation measures, they have thrown in as
a palliative the old oxymoron of "clean" nuclear power.
Of course there is nothing clean about nuclear waste, which can never
be rendered safe.
The public may temporarily accept new nuclear power plants, as long as
one is not built anywhere near their neighborhood and the radioactive
byproduct is shipped to another part of the country.
But trust me, while these things may be better designed today, the
insurance companies are no dummies for still refusing to insure nuclear
power plants. It is wildly irresponsible for the Bush Administration to
now insist that US taxpayers underwrite these inherently dangerous
Does anyone even remember Three Mile Island? Or, more disastrously,
Chernobyl? I was the first foreign print journalist admitted to the
Chernobyl plant after the explosion. Even a year after the fact, and with
the benefit of the best of Western scientific advice, it was still a
scene of chaos. Nuclear power is like that--unpredictable, unstable and
ultimately as dangerous as it gets.
The entire Chernobyl operation is now buried in a concrete-covered
grave, but the huge area under the radioactive plume emitted from the
plant is a permanent cancer breeding ground, as is the sediment in the
area's main rivers and throughout much of its farm land. I traveled from
Moscow to Chernobyl by train in the company of top US and Soviet
experts, but even they seemed to feel lost and frightened as they donned
white coats and Geiger counters to tour Chernobyl. Nuclear power is just
too risky a gamble to push because of a phony energy crisis.
The desperation in the White House is palpable, but it is not over an
"energy crisis," which Bush's buddies and campaign contributors
manipulated in the Western electricity market.
No, the fear of the Bush people, even before Jim Jeffords's defection,
was that their political power would be short-lived and that they had
best move as fast as possible on their pet projects, beginning with
increasing the profits of GOP energy company contributors.
Why else the panic? There is no sudden energy crisis. Known
world reserves of fossil fuel are greater than ever, alternative energy
sources are booming, and conservation measures work. If the Federal
Energy Regulatory Commission would do its legally required duty of
capping wholesale prices to prevent gouging, there would not be an
electricity crisis in California or elsewhere.
The FERC has not done its job. Clearly, as the New York Times reported
last week, energy wholesalers are in cahoots with the Bush administration
to use the FERC as their personal marketing tool to drive up their
already obscene profits.
Finally, there is simply no reason to rape America in pursuit of
something called "energy self-sufficiency." If the vast reservoirs of
natural energy resources--resources that are sitting under land
controlled by regimes around the world that we've propped up at enormous
military cost for half a century--are not available to be sold to us at a
fair price, why continue to prop up these regimes? What did President
Bush's Dad, with his buddies Dick Cheney and Colin Powell, achieve in
preserving Saudi Arabia and Kuwait if those degenerate monarchs they
saved in the Gulf War will not now trade fairly in the one commodity of
value that they hold?
We must make our quid pro quo clear: We will pay for a huge military
to keep these sheikdoms and other energy-rich regimes in power only if
they guarantee fair oil and natural gas prices for our retail consumers.
Make that deal and the energy "crisis" is history.
Fernando Contreras points to the area behind a green mesh fence where his family home used to be. He is about to be a grandfather for the first time.
In a small brick house strung year-round with Christmas lights, behind curtains made of flowered sheets, Jeremiah Smith is listening to his favorite preacher on the radio.
Why beat around the Bush? Surrogate President Dick Cheney is
behaving like an oil-guzzling, intellectually irresponsible,
How else to define one who summarily dismisses the promising advances
made in energy conservation while urging the more rapid depletion of
fossil fuel resources and construction of nuclear power plants?
Cheney is a mouthpiece for energy companies like Halliburton, his
former employer, which paid him $36 million in his last year of brief
service as its CEO in a field he previously knew nothing about. But the
company, which prospers when new power plants are built, got its money's
worth when President Bush added "energy policy czar" to Cheney's
extensive White House portfolio, leaving the president ample time to
greet Little League teams.
Ever grateful to the oil bigwigs who made him financially whole while
lavishly supporting the GOP ticket, Cheney barely took up his new civic
responsibility before launching a war on energy conservation. In his
words, the commitment to conservation, endorsed by a long line of
presidents of both parties, was valuable primarily as therapy for
tree-huggers: "Conservation may be a sign of personal virtue, but it is
not a sufficient basis for a sound, comprehensive energy policy."
Nonsense. Conservation works, and according to the latest government
studies--pointedly ignored by Cheney--it could be a major factor in
staving off any future energy crisis.
As the New York Times reported in its lead story Sunday, "Scientists
at the country's national laboratories have projected enormous energy
savings if the government takes aggressive steps to encourage energy
conservation in homes, factories, offices, appliances, cars and power
The three-year studies by the five national science laboratories
undermine Cheney's shrill insistence that the country must pop for a huge
new polluting power plant every week for the next two decades, lest our
homes and factories go dark. The studies concluded that a government-led
conservation program could cut growth in energy consumption almost in
half, using proven technology already tested and in place.
Such technology is already saving energy and money at Cheney's
official residence at the Naval Observatory and at President Bush's new
ranch in Crawford, Texas. Inexplicably, what's good for them isn't good
enough for the rest of the country.
To ignore scientific breakthroughs on energy conservation is to lie to
the American people about the dimensions of the problem. This is not
leadership; this is fear-mongering that withholds from the American
public sound scientific information in order to justify eviscerating
Indeed, the administration's 2002 budget kills much of President
Clinton's program to improve energy efficiency in building construction,
heating and appliances, savings that would have obviated the need for an
estimated 170 new power plants.
Cheney chose to attack conservation at the very time when California
embarked on a major plan to end its electricity shortage through lowering
consumer demand--a shortage that Cheney irresponsibly blames on
environmentalists who were insisting on pollution controls.
California's crisis is being created by the price-gouging of mostly
out-of-state energy suppliers that are taking advantage of a deregulation
plan hatched by former Republican Gov. Pete Wilson in cahoots with the
privately owned utilities. The utilities wanted to sell off what they
incorrectly figured to be the less-profitable energy production business,
including ever-troubled nuclear plants of the sort Cheney now embraces.
In return, they agreed to temporary caps on consumer prices.
The problem is that the feds control wholesale prices, which they
didn't cap. Last week, when the Federal Energy Regulatory Commission
finally recognized that it needed to exercise its legal authority to cap
wholesale prices, Cheney blasted it: "If I had been at FERC, I never
would have voted for short-term price caps."
California consumers should remember Cheney's refusal to rein in the
price-gougers come the next election.
Finally, whatever happened to the monarchs of Saudi Arabia and Kuwait
saved by former President Bush and then-Defense Secretary Cheney during
the Gulf War?
The monarchs sit atop the world's largest oil reserve. Wouldn't you
think that since they owe their continued existence to the Bush clan,
they might return the favor with lower oil prices? Instead, US
consumers are being punished at the gas pumps with some of the highest
prices in recent memory.
The dirty secret is that the Texas oilmen in the White House like the
price of foreign crude to be very high. That justifies increased US
production, even in pristine lands, and boosts energy profits, which
doubtless will fatten the coffers of Republican candidates in the next
You can't say we weren't warned. Put two Texas oil guys in the White
House, and they are going to seize any opportunity to grease the palms of
their big oil backers while raping the environment.
Still, it is surprising that they are being so obscenely blatant about
The power of the market, and of the giant corporations that dominate it, is the overriding political fact of our time.
Let's not begrudge Dick Cheney his $36 million income last year.
Sure, it dwarfs the puny $744,682 reported by the President, but George
W. Bush represents old money, and he knows better than to be too showy,
particularly when you're running for office as a Joe Six-Pack kind of
guy. Better to roll over the income from inherited money into
Cheney didn't have time for such accounting niceties. Bush caught him
right in the middle of a tax year with that Vice President nod, and
remember, Cheney was only supposed to be advising Bush on the best choice
for Veep. How was Cheney to know he'd be forced to recommend himself as
the most qualified?
Still, just because he had become Vice President didn't mean he had to
take a vow of poverty. As Cheney told CBS News at the time, "I'd like not
to give away all of my assets to serve the public." And why should he,
since there's no law limiting the assets of federal office-holders or any
requirement that they give up their acquired wealth? Cheney had only to
look as far as Bush, who merely put his in a blind trust, no questions
Huge financial assets are now the norm for leaders of our
representative democracy, and it wasn't unexpected that the mostly
wealthy members of the Senate recently voted rich people like themselves
an enormous tax cut, albeit not as large as the one Bush wanted for
himself and his pals.
Cheney's assets are only at risk of taxation if he wants to leave a
huge amount to his heirs without paying additional taxes. Soon, even that
will no longer be a problem because Bush and Cheney are sensitive to the
unfairness of the estate tax to ordinary people like themselves, and they
want to eliminate it.
What was at issue during the campaign was not Cheney's assets or his
income but his future stock options in Halliburton Co. These being tied
to the rise and fall of Halliburton stock, presented a potential conflict
of interest because, as Vice President, it was conceivable that he could
influence stock prices. Under considerable pressure, Cheney decided to
donate those stock options to charity, but he was left with a bit more
than a hair-shirt.
Even after taxes, Cheney cleared more than $20 million in 2000. If the
Bush tax cut had been in effect last year, Cheney would've saved another
couple of million, to which he obviously feels entitled.
Don't forget, Cheney was playing catch-up after years in the public
sector, first as a congressman and then as Defense secretary. As it
turned out, he only had about five years in the private sector to cash in
his chips, and he didn't really know much about the energy business. When
he hired on to serve as the CEO of an oil services firm, he knew he would
have to justify the big bucks he was getting paid.
Fortunately for him and Halliburton, it all worked out in the end.
For the Texas-based Halliburton, there initially was some concern.
Only two years ago, with the company's stock floundering, the board of
directors chastised Cheney for the company's poor performance. But then
came the presidential election, and those same directors must have
figured they had died and gone to heaven after Cheney got the Veep nod.
That's when the board of directors turned around and rewarded him with an
incredibly lucrative severance package providing the bulk of his reported
$36 million income in 2000.
Can you blame them? Most of Cheney's working hours last year were
devoted to seizing the White House for the most avidly pro-Big Oil
presidency in US history, and servicing Big Oil is what Halliburton Co.
is all about. That and construction projects around the world that an
anti-environmental Administration now seems all too eager to facilitate.
Quite an impressive record for an executive who was just learning the
business. They knew the guy would be good; after all, as a congressman he
had one of most pro-industry voting records. And it was Defense Secretary
Cheney who had made the decision to privatize logistical support
facilities for the military, which gave Halliburton's subsidiary, Brown &
Root, huge construction contracts for the US military at bases
throughout the world.
Of course, as the former Defense secretary who'd saved Kuwait, where
Halliburton has huge contracts, Cheney was already known to be an
effective player. But how could Halliburton have known Cheney would be
this good? Not only did he help elect another Texas oil guy as President,
but if you look at the short record of the Bush-Cheney Administration,
when it comes to opening the environment for energy exploration, even
that most pristine area in Alaska, these guys know no limits.
Indeed, they must be guffawing down in Texas to have two good old boys
running the White House without a scintilla of shame. It's been oil money
Time to ease up on George W. So what that he tore up the Kyoto
agreement, which had been painstakingly hammered out among 100 nations in
an attempt to control global warming. Bush doesn't know any better, and
why should he, since he never seemed to think that there was a world out
there worth visiting, let alone saving.
Here's a guy born with credit cards in his cradle, enough to take him
anywhere in the world, first class, who nevertheless pointedly refused to
go. Even kids without any money manage to scrape up a few bucks and go
see the world, but not young George, who satiated his curiosity about
foreign lands with a few beer busts down in Mexico.
Heck, this fellow is so partial to sleeping in his own bed that during
the campaign his handlers had to cajole him into making appearances
outside of Texas. A state that is, the then-governor would tell his
out-of-state audiences, the most perfect place in the world. His bold
plan for the nation is to make it "a greater Texas."
What makes Texas perfect for Bush is that they have gas and oil
profits there, which paid for Bush's run for governor and the presidency
and made his Vice President and other key players in his Administration
very, very rich. Nothing can be allowed to cut into those profit margins,
especially those environmental extremists who are always talking about
clean air and harmful emissions.
Sure Bush is for clean air--as long as it doesn't hurt oil company
profits. Why, when the black smoke in his hometown of Odessa got so nasty
that you had to turn on your headlights in the daytime, Gov. Bush went so
far as to politely ask the big oil companies to come up with a plan to
regulate themselves. They're still working on it.
What he would not buy, as he made clear in the presidential campaign,
is that there is some sort of "greenhouse gas" effect already at work
changing the world's climate in ways that all those alarmists say will
prove disastrous. Yes, it's true that as part of his successful campaign
strategy of conning the center and not frightening the Naderites, he did
pledge to enforce limits on carbon dioxide emissions. So he lied. Big
deal. At least it wasn't about something important, like sex.
Greenhouse gases are not important to Bush because all you have is a
bunch of scientific geeks with all their studies, such as the recent one
by the United Nations' Intergovernmental Panel on Climate Change, which
concluded that such emissions have "contributed substantially" to global
warming. But our President still is not convinced, and that's all that
matters now, thanks to a weird and dubious election.
Anyway, no matter what those scientific studies show, Bush is not
about to let other countries tell us--the United States of America!--what
to do. So what that our 5 percent of the world's population accounts for 25 percent of
its greenhouse gases--on a per capita basis twice that of Western Europe.
Evidently the toxic Texan wants us to be No. 1 in everything, including
Bush is impervious to the argument of other industrialized nations,
which recognize that, being the source of most of the damage, they must
take the lead in repairing it while also setting an example for more
impoverished nations. The response to Bush's position from our
traditional allies has been withering, as typified by France's
environment minister, who termed Bush's actions "completely provocative
and irresponsible." The heck with them if they can't take a joke.
Bush's typically fractured response to the torrent of foreign
criticism was breathtakingly insular: "We will not do anything that harms
our economy. Because first things first are the people who live in
America." Bush must believe that some sort of divine intervention will
preserve the United States as the ice cap melts and the seas rise.
Perhaps this is where the corporate greed faction of the GOP finds common
ground with the party's religious right.
It's sad that party moderates, led by Environmental Protection Agency
chief Christie Whitman and Secretary of State Colin Powell, have not been
able to bring Bush the younger up to speed on this issue. And a pity that
Bush doesn't even listen to William K. Reilly, the EPA administrator
during the first Bush presidency, who urged George W. to at least abide
by the 1992 international convention to combat global warming, which his
But Bush the younger is so steeped in the ideology of Big Oil that he
obviously cannot think clearly about environmental issues. The mind,
particularly of a president, is a terrible thing to waste. But when it
comes to saving the environment, George Bush does seem uneducable.
8,5000 Years of LEAD...
79 Years of LEADED Gasoline