The Supreme Court gave the Bush administration two rebukes on Monday for its global warming and air pollution policies. They were just the most recent examples of the administration's losing streak in court on environmental issues.
For six years, Bush administration officials have been rewriting environmental regulations. For almost as long, environmental groups and states have been suing to try to block the changes. Environmentalists say the pace of decisions in these cases has been picking up, and in most cases both conservative and liberal courts are deciding against the administration.
Buck Parker is the executive director of Earthjustice, a law firm that's opposed the administration in many of these suits.
"Here at Earthjustice we've noticed that in the last three weeks in particular we've had an almost unprecedented string of wins," Parker says.
Parker and other environmentalists and states say these cases blocked Bush administration rule changes that benefit industry at the expense of the environment.
Last week, one federal Court rejected Bush administration changes to the rules that govern what kind of logging, mining or other activities can be allowed in national forests. Another court blocked a Bush administration policy to permit coal mining companies to remove the top of mountains in Appalachia and deposit leftover rock in valley streams. On Monday, the Supreme Court rejected two Bush administration policies — one on global warming and another on coal-fired power plants.
"I don't think that there is a very complicated explanation as to what happening," Parker says. "Simply the current administration has violated environmental laws more frequently and probably more egregiously than administrations in the past, and you have environmental law groups like Earthjustice willing to haul them into court."
White House and Environmental Protection Agency officials refused to comment on their losing streak. But former Bush administration officials rose to their defense.
"The administration has been a champion on the environment," says Lisa Jaeger, an industry lobbyist who used to be the Environmental Protection Agency's general counsel under President Bush. "Every administration has its environmental issues to deal with in court and it takes some wins and it takes some losses."
Sometimes, the administration's score depends on who is keeping track.
In one of Monday's rulings, the Supreme Court said old coal fire power plants must install new pollution controls if they make big repairs and increase the pollution they pump out each year. It rejected Duke Energy's argument that it doesn't have to install new equipment, unless it also increases the amount of pollution it pumps out each hour.
The EPA claims this as a win, but environmentalists say that is disingenuous.
The agency did argue against Duke in the Supreme Court case. But Bush administration officials are in the process of rewriting the clean air rules to embrace Duke's argument that plants do not have to install the equipment unless they increase hourly emissions.
John Walke of the Natural Resources Defense Council says the Bush administration urged the Supreme Court not to consider the case.
An EPA spokeswoman says the Court's decision doesn't change the agency plans to rewrite the rule.
Walke says this is the Bush administration's pattern. It can't get Congress to change the laws. So it rewrites the rules to change the impact of the laws.
"Unfortunately. the Bush administration's environmental and public health agenda has been based upon stretching the law past the breaking point, and thankfully we have courts in this country that have stopped them across the board — clean water cases, clean air cases, global warming, endangered species," Walke says.
Supporters of the administration disagree with the assessment that the administration as been try to over manipulate the law.
"I don't think that's true," says Lisa Jaeger, former EPA official. "I think that what the administration has done is, in each instance when they've confronted obligations to regulate or desire to regulate, they've interpreted the Clean Air Act, the Clean Water Act — any of these laws — as appropriate. And in some instances the courts just disagree."
In the Supreme Court's other big environmental decision on Monday, it decided that the EPA was wrong when it said it didn't have the power to regulate greenhouse gas emissions. States had sued the EPA arguing that it has that power and should use it.
Lisa Heinzerling, a law professor at Georgetown University who represented the states, says the courts have rejected the Bush Administration's policies on this and other environmental issues for good reason.
"I think it suggests that the Bush administration has taken extremely adventurous interpretations of statues that the courts aren't willing to condone," Heinzerling says.
Many of the Bush administration policies overturned initiatives launched by the Clinton Administration — including both of the environmental issues the Supreme Court ruled on yesterday.
Carol Browner headed the EPA for eight years under President Clinton.
"As dreadful as the Bush administration has been with respect to clean air and forests and all these environmental issues," she says, "the courts have been really our savior. And have time and time again in the last years [it has] stepped in."
The Supreme Court stood up for the environment in two major court rulings Monday. One gives the Environmental Protection Agency the go-ahead to regulate greenhouse gas emissions. The second ruling sends a rebuke to the owners of dirty coal-fired power plants.
It was kind of like when Dorothy in the Wizard of Oz learned she always had the power to go home. The Supreme Court ruled Monday that the Environmental Protection Agency does, in fact, have the authority to regulate the greenhouse gases that contribute to climate change.
Bush administration officials had argued that the agency didn't have that power — and so the EPA couldn't require cars to reduce emissions. Several states and environmental groups sued the EPA, arguing that the agency did have that power and should use it.
Law professor Lisa Heinzerling from Georgetown University represented the states. She says the ruling has implications not just for car emissions but for power plants, factories and other sources of greenhouse gases.
"It's a huge deal, it's hard to overstate the importance of this," Heinzerling said.
The ruling does not require the EPA to regulate. But Heinzerling says for the EPA to avoid regulating, it would have to show that these emissions don't endanger public health or welfare.
"I think it will be extremely difficult, and I would venture to say impossible for them to conclude based on the scientific evidence we have that you cannot anticipate that greenhouse gases will endanger public health or welfare," Heinzerling said.
EPA officials declined an interview with NPR. An EPA press release says the agency is reviewing the court ruling. The ruling could put the EPA in a difficult position because so far, President Bush has rejected mandatory cuts in greenhouse gas emissions.
In the meantime, environmentalists and state officials say the ruling opens the door for states to move ahead with regulating greenhouse gas emissions from cars. A dozen states, led by California, have adopted or are in the process of adopting such rules. They need the EPA's OK to go ahead. And Heinzerling says the Supreme Court ruling will make it hard for EPA officials to say no.
"I can't imagine that they wouldn't," she said. "I don't see any legal basis for refusing to allow California and other states to enact standards after this ruling."
The main auto industry trade group wouldn't comment on the ruling. But Dan Riedinger from Edison Electric Institute says his industry doesn't want the EPA to set standards.
"If greenhouse gases are going to be regulated, and obviously a lot of people think that's inevitable, we would far rather that come from the U.S. Congress," Riedinger said.
The other big Supreme Court decision could also have a big impact on power plants and their pollution. Attorney Blan Holman from the Southern Environmental Law Center worked on the case for environmental groups.
"The case is all about old coal-fired power plants and what happens when you rebuild them," Holman said. "Do you have to put air pollution controls on them or do you not?"
Holman's talking about the equipment that filters out fine particles and smog from smoke stacks. They cause thousands of early deaths and many emergency room visits every year.
The EPA, environmental groups and states are suing several power companies for failing to install pollution controls. In this case, the Supreme Court decided against Duke Energy.
"It's a major set back to the case and it's something that is regrettable to us, but it is not shutting down the case by any means," said Tom Williams, who represents Duke.
The Supreme Court was deciding whether annual emissions or hourly emissions are the deciding factor when measuring if emissions have increased and thus pollution controls should be installed. The Supreme Court says annual emissions are what matters. But the power companies have other ways to defend their actions.
"It's our contention in this case that we did nothing wrong in the first place, and that is why we're going to continue to press this in the lower courts," Williams said.
But environmentalists say the ruling will provide a strong incentive to clean up many of the dirtiest coal-fired power plants in the country. And they say that both rulings together suggest that the Supreme Court is far greener than anyone realized.