It is appropriate that Maine Public Broadcasting did this solid little story about the Supreme Court decision in AEP v. Connecticut.

The Supreme Court decision makes it clear that Congress, by enacting the Clean Air Act, entrusted the US EPA with the job of tackling air pollution emissions like the greenhouse gases causing global warming – and that if EPA does not use that power to address harm to the environment that the door is opened to private lawsuits against polluters.

This all means that Congress, particularly key “swing votes” like the Senators from Maine, should resist calls to distract EPA from doing its job.   The time for political game playing around this critical issue is long passed and EPA action, meeting its Clean Air Act responsibilities, is long overdue.

Today, the United States Supreme Court returned to the fundamental environmental challenge facing our nation and planet when it decided AEP v. Connecticut, a case in which a group of States, joined by the City of New York and private land trusts, brought a lawsuit against some of the largest emitters of the Greenhouse Gases causing the global warming and climate change that is causing harm to our environment and the public health.

First the biggest of the bad news:  The court said that the plaintiffs bringing the lawsuit could not, at this time, use federal “common law” to hold the polluters accountable.  It is always bad when misdeeds and harm are left unaddressed.

But there is a lot of good news:  The Supreme Court emphatically reiterated the obligation of the EPA to take action to deal with Greenhouse Gas emissions reasserting strongly the decision in Massachusetts v. EPA (a case brought by States and environmental groups including CLF).  In MA v. EPA the court clearly stated that the plain words of the Clean Air Act require EPA to begin the process of regulating Greenhouse Gas emissions.

In the decision today the Court said:

[The Clean Air] Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.

This decision reaffirms the absolute importance of EPA doing its job and following through on the orders it was given by Congress in the Clean Air Act.   The time is long past for that task to be brought to completion.

U.S. Supreme Court Justice John Paul Stevens’ announcement that he will retire from the United States Supreme Court will bring some much needed attention to the larger issue of judicial nominations under the Obama Administration. 

These days, it is hard to  find a good word to say about the ultraconservative majority of the United States Supreme Court that Justice Stevens has tried, with limited success, to counterbalance.  That’s especially true for those who care about clean water (query: because clean water is fundamental to human survival and prosperity, shouldn’t we all care about clean water?)  In a few short years, the Roberts’ Court’s rulings have managed to seriously undermine and restrict one of America’s most important and successful laws–the Clean Water Act. 

For example, the NewYork Times recently reported on the chaos one of the Court’s rulings has created:

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.   As a result, some businesses are declaring that the law no longer applies to them.  And pollution rates are rising.

A majority of these Justices seems intent on handing down a death sentence to the Clean Water Act

In another example from 2009, Coeur Alaska v. Southeast Alaska Conservation Corps., the Court badly misinterpreted the CLEAN WATER ACT to reach the conclusion that a gold mining operation was entitled to a permit allowing it to discharge “210,000 gallons per day of mining waste into Lower Slate Lake, a 23-acre subalpine lake in Tongass National Forest,” even though the ” ‘tailings slurry’ ” would “contain concentrations of aluminum, copper, lead, and mercury” and would “kill all of the lake’s fish and nearly all of its other aquatic life.” 

President Obama has an important opportunity, actually I would argue it’s a responsibility, to rebalance the federal judiciary after years of ultraconservative domination and transformation.  (If you want to understand how the judiciary was so effectively radicalized by the right, read Jeffrey Toobin’s book “The Nine: Inside the Secret World of the Supreme Court.”).  The administration’s slow pace and cautious character in nominating people to fill court vacancies has been drawing criticism since November of last year as evidenced by this New York Times editorial.  Unfortunately, recent reporting in the L.A. Times indicates that President Obama still hasn’t made much progress due to a combination of White House inattention and timidity and Republican obstructionism in the Senate.

Terrible judicial decisions, like those discussed above, are turning this country’s essential environmental protection laws on their heads and at the same time putting the public health and environmental sustainability of this country at great risk.  America has some excellent environmental laws.  To be sure, we need to make them stronger to deal more effectively with newly-understood challenges like global climate chaos.  But when we have judges who are ideologically unwilling to affirm the pollution-controlling principles set forth in the laws, we have no hope of achieving the level of environmental protection essential for our continued national prosperity.  

If we want to ensure that our environmental laws work to keep us healthy and happy, we must urge President Obama to follow the lead of Franklin Delano Roosevelt in appointing judges like the late Supreme Court Justice William O. Douglas. 

Former Supreme Court Justice William O. Douglas understood the purpose of our environmental laws and the values that motivated their enactment by bi-partisan majorities of Congress

Justice Douglas truly understood the values that informed Congress’ adoption of such successful laws as the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and the Wilderness Act.  In his 1961 memoir “My Wilderness; East to Katahdin,” Douglas expounded on the value of rivers as public resources:

“Rivers are choice national assests reserved for all the people.  Industry that pours its refuse into rivers and the other commercial interests that use these water highways do not have monopoly rights.  People have broader interests than moneymaking. Recreation, health, and enjoyment of aesthetic values are part of man’s liberty.  Rivers play an important role in keeping this idea of liberty alive.”

For this and all the other ideas of liberty that are threatened by a judiciary dominated by radical conservatives, we must take action.  Call or email the White House and ask president Obama to find us the men and women who will follow in the tradition of Justice Douglas, and help the president fight to get them appointed to the federal courts.