Wednesday, November 02, 2005

Alito ..... Polluto?

The nomination of Judge Sam Alito to the Supreme Court has caught the attention of those who care about the air we breathe and the water we drink. Grist Magazine has looked over his environmental and found him more than wanting.

From Grist Magazine:

Sugameli cites the example of Public Interest Research Group v. Magnesium Elektron, a 1997 case in which Alito cast the deciding vote in a 2-1 ruling that not only blocked certain rights of citizens to sue polluters under the Clean Water Act, but threw out a $2.6 million fine against Magnesium Elektron for violating the act. The decision was effectively reversed two and a half years later by a Supreme Court ruling in which Scalia was one of two dissenting votes....

Take, for instance,
Chittister v. Department of Community and Economic Development, in which Alito argued that the 11th Amendment prohibits state employees from suing a state government in federal court for damages under the federal Family and Medical Leave Act. (The Supreme Court later ruled that employees could sue under a related provision of the act.) "It's more evidence that Alito may not believe the Constitution adequately empowers Congress to allow average Americans to go to court, protect their rights, and ensure that environmental and other laws are enforced," said Sugameli....

The most troubling skeleton in Alito's judicial closet, according to
Sierra Club senior attorney David Bookbinder, is the dissent he wrote in U.S. v. Rybar in 1996. Alito advocated striking down a federal law banning possession of machine guns on the grounds that, in some instances, it exceeds congressional power under the Constitution's Commerce Clause. He argued that, as in-state machine-gun possession is not interstate economic activity, such authority should be conferred to state governments alone. This kind of reasoning strikes fear in the hearts of enviros, as the Commerce Clause is the basis for nearly every major federal environmental law in the U.S.

"If he is willing to find that Congress doesn't have that sort of authority over possession of machine guns, it makes you very concerned he will apply the same logic to Congress's authority over interstate pollutants," said Bookbinder.

This is particularly concerning to enviros given that three weeks ago, the Supreme Court decided to review
Rapanos v. United States and Carabell v. Army Corps of Engineers, two landmark cases that challenge the reach of the Clean Water Act and call into question state-level versus federal authority to protect the environment. "The stakes are enormous," said Kendall. "If the federal government loses these cases, millions of acres of waters and wetlands could be left unprotected. And an adverse ruling would also call into question a much broader array of environmental safeguards."

It brings into sharp relief the potentially immediate impact of Alito's nomination, Kendall added: These cases are scheduled to be heard in the spring of 2006, so if confirmed, Alito would be in a position to cast a deciding vote.
The question we should be asking ourselves is: Should Judge Sam Alito be allowed to decide our environments future? In many of the major cases in which he rendered a decision he has shown that he is more a friend of big business and a fan of legislating from the bench. Grist does point out that Alito isn't a complete disaster in Pennsylvania Coal Association v. Bruce Babbitt and Southwestern Pennsylvania Growth Alliance v. Carol Browner he ruled against the polluters, however :
Alito appears to have favored environmental protections "mainly in the face of unanimous agreement and overwhelming evidence against polluters," said Doug Kendall, executive director of the Community Rights Counsel

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