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Justices Thwart Bush Team on Environmental Policy

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."

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Elizabeth Shogren is an NPR News Science Desk correspondent focused on covering environment and energy issues and news.
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