The Supreme Court's Attack on the Environment

by William Sanjour

June 8, 2001

By the late 1960s, Congress felt compelled to pass strong new federal environmental laws because the States could not cope with the interstate nature of air, water and other pollution. The source of much pollution was from big industries like chemical manufacturing, oil refining, power plants, mining, automobiles, etc. As prosperous States would pass strict pollution control laws, poorer States would lure their industry away with weak environmental laws and weak enforcement thus forcing the richer states to back down. The States were forced to beseech Congress to help them because they could not help themselves. Industry too preferred federal regulation (albeit weak ones) to preempt inconsistent State laws. From these concerns grew myriad Federal laws setting minimum national environmental standards, including:
  • The Clean Air Act (1970)
  • Federal Water Pollution Control Act (1972)
  • Marine Protection, Research, and Sanctuaries Act (1972)
  • Ocean Dumping Act (1972)
  • Federal Insecticide, Fungicide and Rodenticide Act (1972)
  • The Endangered Species Act (1973)
  • The Safe Drinking Water Act (1974
  • The Toxic Substances Control Act (1976)
  • The Resource Conservation and Recovery Act (1976)
  • Clean Water Act (1977)
  • Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) (1980)
  • The Oil Pollution Act (1990)
  • The legal authority for these laws (as well as many others) rests on the modern interpretation of two Constitutional pillars; the Interstate Commerce Clause which gives Congress the authority "to regulate commerce . . . among the several States." and the 14th Amendment, which says "No State shall ... deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.. ... The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

    In contrast, the 11th Amendment to the Constitution prohibits federal involvement in law suits against a State. However this provision for "State sovereign immunity" is overruled by the 14th Amendment and the Commerce Clause where they apply. Where they apply and who decides where they apply, is the crux of the issue because without the authority of Congress to overrule State law, Federal environmental laws would be toothless.

    Over time both Congress and the Supreme Court have interpreted the Commerce Clause and 14th Amendment provisions in ever broader terms so that for example "commerce" has come to include migratory birds and "due process" has come to include Miranda warnings. Now, with devastating speed, recent Supreme Court rulings are reversing that trend by hacking away at the two Constitutional pillars and threatening to topple the laws which they support. This Court holds the record for the most number of federal laws struck down. It is the most activist court in memory, even more so than that right-wing bogeyman, the Warren Court. Many Constitutional scholars believe that with the present makeup of the Supreme Court it is only a matter of time before the environmental laws, or at least the federal government's right to enforce them against an unwilling State, are abrogated. While naively (or disingenuously) declaring in Alden v. Maine that we can rely on "[t]he good faith of the States" to voluntarily comply with federal law, the Court is actually leading us to the same chaotic state of affairs which existed prior to 1970.

    The cases of concern rarely have anything to do with the environment per se but are scattered over many diverse laws so that the national press and the general public have not focused the pattern that has emerged and its consequences. These decisions have been decided by the same 5 to 4 majority. In looking at the arguments used, rather than the issues themselves, one can readily see where this court is headed, and it is headed toward destroying the legal foundations of much of the liberal legislation of the late 20th Century including environmental protection laws, age and sex discrimination laws, consumer protection, whistleblower protection, false claims acts, etc.

    While there are many 5 to 4 decisions, which strike at the two pillars, since the conservative majority gained ascent in 1991, we'll just look at a few.

    Kimel v. Florida Board of Regents (January 11, 2000)

    The Age Discrimination in Employment Act of 1967 makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual because of such individual's age."

    The Court ruled that Congress lacked authority to impose the Age Discrimination in Employment Act on States. Its decision was based on the admonition that Congress' authority under the 14th Amendment is limited to remedying or deterring unconstitutional conduct and only the Court can decide what constitutes unconstitutional conduct. The Court dismissed Congresses reasoning, stating:

    A review of the ADEA's legislative record as a whole reveals that Congress had virtually no reason to believe that State and local governments were unconstitutionally discriminating against their employees on the basis of age. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. That failure confirms that Congress had no reason to believe that broad [preemptive] legislation was necessary in this field.
    In other words, five judges sitting in isolation, claim to know more about the pattern of age discrimination than Congress, which holds hearings, collects data and is answerable to the electorate. The Court's dissenting minority was so outraged by the majority's usurpation, they refused to recognize it as setting precedence saying:
    There is not a word in the text of the Constitution supporting the Court's conclusion that the judge-made doctrine of sovereign immunity limits Congress' power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President.

    The kind of judicial activism ... represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.

    Thus a significant chunk was cut from the pillars.

    United States v. Morrison (May 15, 2000)

    In finding that Congress did not have the authority to give citizens the right to civil suit in federal court under the Violence Against Women Act the court declared that non-economic actions were not covered by the Commerce Clause and that the 14th Amendment did not apply to acts by individuals.

    The Violence Against Women Act of 1994, among other things, gave citizens the right to file a civil suit in federal court against individuals in rape cases. Congress spent four years of hearings, assembling a mountain of data, before passing this law. The reason for such caution was to convince the courts and themselves not only was there a need for such a law but also that there was Constitutional authority for Congress legislating in this area. In order to do the later, it was necessary to show that there was a basis in the Commerce Clause and the 14th Amendment.

    As to the Commerce Clause, after reviewing their voluminous evidence Congress found that

    crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce [,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products .
    The Court dismissed this argument, and I have to agree with them on this. After all if rape can be Federally regulated because of its affect on interstate commerce then an even better case, I would think, can be made for almost any other crime, from murder to pick-pocketing. Witness the effect on tourism in Florida when tourists were frequently being murdered..

    In my view Congress made a better case for justification under the 14th Amendment. The Solicitor General argued before the Court that "Congress also expressly found that the States had failed, as a result of pervasive bias in their civil and criminal justice systems, to guarantee the equal protection of the laws to victims of gender-motivated violence."

    The Court replied:

    ... that there is pervasive bias in various State justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only State action, not private conduct.
    This pusillanimous reading of the Constitution belies the fact that the failure of the States to act, when they have the responsibility to act, is itself a form of action. Ironically, although the Court argued it was defending States rights against an overreaching legislature, 36 States supported Congress' action. It would appear that this Court has no shame when it sees an opportunity to cut down the 14th Amendment.

    Circuit City v. Adams (March 21, 2001)

    The Federal Arbitration Act (FAA) was passed in 1925 in order to require the courts to enforce binding arbitration agreements between employees and employers. Saint Clair Adams signed such an agreement when he went to work for Circuit City. Two years later, he filed an employment discrimination lawsuit against Circuit City in State court, asserting claims of discrimination under California's Fair Employment and Housing Act, thus bypassing his arbitration agreement. Circuit City then filed a suit in Federal court, citing the FAA, to require Adams to submit to binding arbitration.

    When Congress passed the FAA in 1925 it excluded from the Act's coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Presumably this was done because workers engaged in interstate commerce were covered under other acts. Adams used this fact in his defense, claiming Circuit City employees were exempt from the FAA because they are engaged in interstate commerce.

    The Supreme Court, however, found for the employer, holding that the phrase "engaged in commerce" in this case should be given the narrow 18th Century interpretation limited to "transportation employees," like seamen, railroad workers and teamsters, who are "actually engaged in the movement of goods in interstate commerce" rather than the modern understanding of the Commerce Clause. It did this based on their interpretation of the grammatical structure of the phrase "any other class of workers engaged in foreign or interstate commerce" arguing that "any other class of workers" does not mean "any other class" but really means "any similar class" thus limiting the phrase to workers engaged in commerce similar to seamen and railroad workers. It reminds one of Bill Clinton's famous explanation of what the meaning of "is" is.

    These three decisions are only a few of the many recent attacks on the Commerce Clause and the 14th Amendment which include:

  • Seminole Tribe of Florida v. Florida (March 27, 1996)
  • Alden v. Maine (June 23, 1999)
  • College Savings Bank v. Florida Prepaid Postsecondary Education Expenses Board, (June 23, 1999).
  • Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (January 9, 2001)
  • Alexander v. Sandoval (April 24, 2001)
  • Do the five judges of the Supreme Court understand where they are heading? Do Chief Justice William H. Rehnquist, Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas really want their grandchildren to grow up in a country where the States exercise their "State sovereign immunity" by outbidding each other on who will allow the most poison into their air, water and food in order to hold onto their industries?

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