Thursday, March 31, 2005

Hapless Toads 

With William Rehnquist likely, before much longer, to topple off the bench, Benjamin Wittes argues in the May Atlantic (online, but subscription-only, alas) that liberals have consistently overlooked the one area in which a Supreme Court packed with Bush appointees would be likely to do the most irreparable long-term damage. Is it abortion rights? No. Civil rights? No. Criminal law . . . ?
The environment—and it's no wonder you couldn't guess. Although environmental groups sometimes raise issues in the confirmation process, environmental protection is not central to the fear-mongering of the liberal interest groups that oppose conservative judges. But the threat to basic environmental protections from conservative jurisprudence is broad-based and severe.

Consider the Constitution's commerce clause, which empowers the national legislature to regulate "commerce … among the several states." Since the New Deal the commerce clause has been construed very broadly, becoming the constitutional backbone of much important civil-rights legislation and of all the major environmental laws. Yet since 1995 the Court has issued a series of decisions that emphasize the limits of the commerce power, requiring that laws enacted under it deal in some sense with—well, interstate commerce. I have considerable sympathy for this line of argument, but its potential dangers to the environment are hard to overstate. For while the environment itself is intrinsically interstate, not all environmental-protection measures obviously constitute regulations of commerce "among the several states"—or even regulations of commerce at all. Can the government, under the Endangered Species Act, protect—as one conservative judge poetically put it—"a hapless toad that, for reasons of its own, lives its entire life in California"? Can it, under the Clean Water Act, protect isolated seasonal pools (which are not interstate) used by migratory birds (which are)?

These questions are not law-school hypotheticals. The constitutionality of protecting single-state endangered species from activity that may or may not be commercial in nature has been roiling the lower courts, splitting the most energetic conservatives from more-cautious ones . . . .

In recent years the Rehnquist Court has breathed life back into the notion of states' immunity from suits for money—an immunity rooted in the Eleventh Amendment. This line of cases is exceedingly controversial, and rightly so; but its practical effects have been limited in application. In a disturbing and widely overlooked 2001 opinion, however, the Fourth Circuit used an Eleventh Amendment argument to block an environmental suit that sought to force West Virginia officials to stop letting mining companies blow the tops off mountains to get at the coal inside. A reinvigorated Eleventh Amendment could prove a disaster for federal environmental laws, which because of their unique structure could be unusually vulnerable to this doctrine.

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