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Public Radio's Environmental News Magazine (follow us on Google News)

Alito on Trial

Air Date: Week of

It's been 18 years since major environmental groups formally opposed a Supreme Court nominee. Living on Earth’s Jeff Young looks at their case against Alito.


GELLERMAN: It’s Living on Earth. I’m Bruce Gellerman. The U.S. Senate will soon vote on whether Judge Sam Alito will become the next associate justice of the nation’s Supreme Court. If approved, Alito would replace the justice who was frequently the decisive vote on important environmental cases. Justice Sandra Day O'Connor, is retiring after her replacement is chosen. After reviewing Alito’s record many environmental advocates are opposing his appointment to the high court. As Living on Earth’s Jeff Young reports, they are finding little in his confirmation hearings to ease their concerns.

YOUNG: Call it the case of enviros versus Alito, in which some of the country’s leading environmental groups argue against the president’s choice for the Supreme Court. Their exhibit “A”? T he judge’s 15 year record on the federal bench.

BOOKBINDER: In which he presents a clear and present danger to our national environmental laws. When Judge Alito goes wrong on those he goes very, very wrong.

YOUNG: That’s Sierra Club senior attorney David Bookbinder explaining why his group is doing something it hasn’t since Robert Bork’s nomination 18 years ago: oppose a high court nominee.
Bookbinder says Alito’s narrow interpretations of environmental law and Congressional authority undermine protections for water, air and endangered species.

BOOKBINDER: Judge Alito’s insistence that he has to read laws Congress intended courts to apply in the broadest fashion possible, that he has to read them in the narrowest possible fashion, flies in the face of both what Congress intended and the reality of how our legal system works.

YOUNG: Bookbinder says Alito’s view of federalism limits the reach of government regulation. And he worries that Alito could block some lawsuits seeking environmental protection. Under the concept called “citizen standing,” ordinary people can sue for enforcement if they think the responsible government agency isn’t doing its job.

That’s what happened in the case of Magnesium Elektron vs. New Jersey’s Public Interest Research Group. The group sued to stop pollution of a tributary of the Delaware River. A lower court found the chemical company had 150 violations of the Clean Water Act. But Alito voted to dismiss the case because the group had not proved it was directly harmed by the pollution and, therefore, lacked standing. He defended that decision during his confirmation hearing.

ALITO: The plaintiffs in that case had established injury in fact. The plaintiffs in the case alleged that they enjoyed the Delaware River in a variety of ways. They ate fish from the river, they drank water from river, they walked along the river. But there was no, the evidence before us did not show that there was any standing on the part of the plaintiffs. There was no evidence of harm to the Delaware River in any way from the discharges.

YOUNG: Vermont Democrat Patrick Leahy pressed Alito, pointing out that in a similar case - Friends of the Earth vs. Laidlaw - the Supreme Court took an opposite view, making it easier for citizens to bring such suits. So, Leahy asked, does that mean “citizen standing” should stand as the law of the land?

LEAHY: Is Laidlaw settled law?

ALITO: Well, Laidlaw is a precedent of the Supreme Court, and my answer to the question there is the same: it’s entitled to the respect of stare decisis.

YOUNG: That’s a phrase Alito used a lot when hot topics came up. It’s Latin for “let the decision stand,” and it means a judge should generally follow the reasoning of earlier decisions. But it does not completely put the issue to rest. University of Chicago Law Professor Cass Sunstien says Alito is at odds with the justice he would replace, Sandra Day O’Connor, who was a critical vote defending citizen standing.

SUNSTIEN: That would be a big deal for Judge Alito to replace Justice O’Connor, would be to shift the law in a way that would probably – you can’t be sure – but would probably decrease the ability of ordinary citizens to have access to court to protect the environment.

YOUNG: But, overall, Sunstien says he does not find Alito "alarming from an environmental standpoint." Other legal experts judge Alito more harshly.

TURLEY: He is the perfect storm for environmentalists.

YOUNG: Jon Turley teaches environmental law at George Washington University. Turley says Alito’s endorsement of a theory called "the unitary executive" puts too much power in the hands of the president and not enough with people who challenge government agencies.

TURLEY: He combines a belief in the unitary executive with federalism beliefs with extremely antagonistic views of standing. You can’t get much worse than that for environmentalists.

YOUNG: Alito’s defenders point to cases where he held cities to strict air quality standards, punished companies for failure to report hazardous substances, and forced toxic waste cleanups.
Environmentalists counter those were cases in which the facts left Alito with little choice but to uphold lower court rulings. Now the Sierra Club is taking its argument against Alito to the airwaves.

AD: That's why we need Senators Blanche Lincoln and Mark Pryor to protect Arkansas' rivers and drinking water, by opposing the nomination of Sam Alito.

YOUNG: The ads target Arkansas and Maine, whose senators are undecided on Alito. And it’s no accident the focus is clean water. Two major Clean Water Act suits on the Supreme Court docket would be among the first cases Justice Alito would hear if the Senate votes to confirm him. For Living on Earth, I’m Jeff Young in Washington.



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