States of Nature
by Jeffrey Rosen
The New Republic
How George Bush's legal war against the environment backfired.
In their long-standing campaign against environmental protections, American conservatives have taken a kitchen sink approach: First they exalted states' rights and attacked the Environmental Protection Agency; later, they reversed course, attacking states' rights and exalting the EPA. The only consistent objective was to thwart regulation, and the only question was which strategy would be most effective in achieving that goal.
But their political opportunism may soon come to haunt them. By abandoning their strict states'-rights principles for a broad view of the EPA's authority, conservatives have boxed themselves into a corner. If Congress and the White House are in a more environmental mood after November, conservative anti-environmentalists may find that they have laid the legal groundwork for their ultimate defeat.
The debate among conservatives over the best strategy for pro-business environmental policies has been raging for three decades. During the Reagan and first Bush administrations, the states'-rights strategy initially prevailed. In a series of legal challenges, conservatives embraced a pre-New Deal vision of Congress's power to regulate the environment. They insisted that the Clean Air Act, which instructs the EPA to "protect the public health" by regulating ozone and particulate matter, was an unconstitutional delegation of regulatory authority. In a federal appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. embraced this radical argument. (He was the same judge who had called for the resurrection of the "Constitution in Exile"--a reference to judicial limitations on federal authority that had been dormant since the 1930s and that would have called the EPA itself into question.) But, in 2001, in a unanimous opinion written by Justice Antonin Scalia, the Supreme Court disagreed. (In a separate concurrence, only Clarence Thomas indicated that he would be amenable to similarly radical arguments in the future.)
(Continued here.)
The New Republic
How George Bush's legal war against the environment backfired.
In their long-standing campaign against environmental protections, American conservatives have taken a kitchen sink approach: First they exalted states' rights and attacked the Environmental Protection Agency; later, they reversed course, attacking states' rights and exalting the EPA. The only consistent objective was to thwart regulation, and the only question was which strategy would be most effective in achieving that goal.
But their political opportunism may soon come to haunt them. By abandoning their strict states'-rights principles for a broad view of the EPA's authority, conservatives have boxed themselves into a corner. If Congress and the White House are in a more environmental mood after November, conservative anti-environmentalists may find that they have laid the legal groundwork for their ultimate defeat.
The debate among conservatives over the best strategy for pro-business environmental policies has been raging for three decades. During the Reagan and first Bush administrations, the states'-rights strategy initially prevailed. In a series of legal challenges, conservatives embraced a pre-New Deal vision of Congress's power to regulate the environment. They insisted that the Clean Air Act, which instructs the EPA to "protect the public health" by regulating ozone and particulate matter, was an unconstitutional delegation of regulatory authority. In a federal appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. embraced this radical argument. (He was the same judge who had called for the resurrection of the "Constitution in Exile"--a reference to judicial limitations on federal authority that had been dormant since the 1930s and that would have called the EPA itself into question.) But, in 2001, in a unanimous opinion written by Justice Antonin Scalia, the Supreme Court disagreed. (In a separate concurrence, only Clarence Thomas indicated that he would be amenable to similarly radical arguments in the future.)
(Continued here.)
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