Fact Sheet: Nomination of Judge Samuel Alito Threatens Environment

When it comes to the constitutional questions that will determine the ability of Congress to enact environmental laws and that of citizens to access courts to enforce them, Judge Samuel Alito threatens to drive the Court in a decidedly anti-environment direction if confirmed.  His record includes several troubling aspects:

·         Narrow view of congressional power threatens environmental laws.  Early next year the Court will hear arguments in two cases that could radically restrict the scope of the Clean Water Act.  Judge Alito’s dissent in United States v. Rybar indicates an untenably narrow view of the federal government’s ability to legislate in the public interest—one that threatens to undermine not only the Clean Water Act, but the Endangered Species Act and a host of other environmental laws. 

Earlier in his career, Alito urged President Regan to veto the Truth in Mileage Act, which criminalized tampering with odometers in used cars and expressly dealt with matters of interstate commerce.  Alito stated that the law “violates the principles of federalism,” and that “it is the states, not the federal government, that are charged with protecting the health, safety and welfare of their citizens.”

·         Restrictive view of standing doctrine threatens citizen access to courts.  In Public Interest Research Group v. Magnesium Elektron, Inc., Judge Alito espoused a restrictive view of the constitutional standing doctrine, making it harder for citizens to sue polluters. Citizen enforcement is an indispensable feature of the Clean Water Act, Clean Air Act, Superfund and many other laws that protect our health and safeguard our natural resources. These citizen suits empower ordinary Americans to sue polluters when government lacks the resources or political will to enforce the law.   The opinion Alito joined in Magnesium Elektron held that groups lacked standing to sue because they hadn’t established scientific proof of environmental harm—even though it was uncontested that the company committed 150 violations of the Clean Water Act.

Judge Alito’s Judiciary Committee questionnaire contains a one-sided discussion of standing that reaffirms the narrow view he articulated in Magnesium Elektron.  His response stresses the need to restrict access to courts rather than to allow citizens broad access to them.

·         Favorable EPA decisions overruled despite deferential standard of review.   Alito has sided with environmentalists in some cases that turned on interpretation of an environmental statute.  But in others he sided with industry and invalidated pro-environment EPA decisions, despite the fact that courts are supposed to defer to the expertise of agencies.  He has not invalidated agency decisions under this deferential principle in challenges brought by citizen groups. 

·         Nomination replaces a swing environmental vote with an anti-environment one.  Judge Alito was nominated to replace Justice Sandra Day O’Connor, a swing vote who often tipped the Court’s balance in favor of protecting the environment.  She sided with pro-environment majorities that upheld clean air, clean water and wildlife habitat protections.  Replacing her with a justice with a much more narrow view of the constitutionality of environmental protections threatens to tip the Court’s balance against the environment.