Now that the radical majority on the Supreme Court — the activist conservative judges — have overturned a century of precedent and settled law with their decision in Citizens United v FEC, they may soon have an opportunity to overturn the longstanding use of the Commerce Clause as the basis for federal environmental laws such as the Endangered Species Act and the Clean Water Act.
Author Ray Ring, writing in the High Country News (“Supreme beings: After gutting campaign finance, the high court may go after the Commerce Clause“), explains it this way [with hyperlink references added by me]:
… there are signs that Chief Justice Roberts might rule that the Commerce Clause cannot be the basis for federal environmental laws such as the Endangered Species Act and the Clean Water Act. While serving on an appeals court in 2003, Roberts wrote a dissenting opinion, saying that the Commerce Clause did not allow the U.S. Fish and Wildlife service to impose regulations on a California developer to protect habitat for an endangered toad. Roberts said the case was not about interstate commerce; it merely concerned “a hapless toad, that for reasons of its own, lives its entire life in California.”
Libertarian and rightwing groups are arguing against the Commerce Clause in environmental cases in lower courts, hoping to push it to Roberts’ Supreme Court. The leading green law firm, Earthjustice, has warned that Roberts seems to have “an ideological agenda” for overturning environmental laws based on the Commerce Clause.
Read the full article here.