Kennedy Swings, Roberts Strikes Out, Bush Loses, Earth Wins

Bill Scher

President Bush’s Environmental Protection Agency claimed that, despite the Clean Air Act, it didn’t have the authority to combat the greenhouse gases that cause global warming. And even it did, it didn’t feel like it.

Bush’s Supreme Court justices John Roberts and Sam Alito agreed, along with veteran conservative activist judges Antonin Scalia and Clarence Thomas.

But the conservative movement has not yet fully taken over the Supreme Court.

In a 5-4 ruling, the Court ruled against Bush’s EPA, finding it does have the authority, and its excuses not to do anything about greenhouse gases don’t relate to the Clean Air Act (aka, the law).

(Case background available at ACSBlog, Environmental Defense, Gristmill and Think Progress.)

The Court majority included Ronald Reagan-appointee Justice Anthony Kennedy, who is proving to be a swing vote preventing the new Roberts Court from being dominated by conservative activism.

Roberts’ dissent (PDF file) should be a wake-up call to those who bought his earlier “I have no agenda … my job to call balls and strikes and not to pitch or bat” smokescreen. From his dissent:

Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government?’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable.

Much like Bush’s EPA, Bush’s Chief Justice shrugs and says: I don’t have the authority to follow and uphold the law.

Rendering the law, the democratically created law, worthless.

But this conservative judicial activism was defeated today, thanks to three Republican-appointed and two Democratic-appointed Justices.

What’s the practical benefit for the environment?

Both U.S. PIRG and Clear Air Watch note that Bush’s EPA has been holding up state-based efforts to implement strong tailpipe emissions standards, and the Court ruling undercuts that move.

Also, Justice Scalia’s 1993 effort — long supported by Roberts — to restrict the ability of citizens to go to court and uphold environmental laws, has suffered a major setback.

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