The court ruled against both the Bush administration and even significant sections of business. But wait! The court's decision was a victory for right-wing dogmatists of the kind whom the Federalist Society, in its role as a political employment agency for Republican administrations, has been funneling into the Justice Department and the federal judiciary for decades.
The decision knocked out Clean Air regulations put forward by Bush's Environmental Protection Agency which, as Frank O'Donnell, director of the environmental group Clean Air Watch, noted somewhat tongue in cheek,was "a rare case where environmental groups went to court alongside the Bush administration.
O'Donnell, whose group, like virtually all others, has been compelled to fight defensive battles against Bush's anti-environmental policies since the first days of the administration, took his tongue out of his cheek when he said that "this is without a doubt the worst news of the year when it comes to air pollution." The rules the court knocked out, according to Bush's not so environmentally friendly EPA, would prevent 17,000 "premature deaths" in the U.S. annually (of the elderly, chronicling ill, children, the most vulnerable people in the society.
The rationale for the decision was straight out of court's pre 1930s anti-public interest regulation dogmas. The EPA had expanded its authority. It didn't have the right to raise air pollution standards under the Clean Air Act (the court didn't take the very old right position that the Clean Air Act itself was a violation of the "freedom" of corporate polluters, but who knows what will happen in the future).
In this case, a spokesman for the corporate group representing electric utility companies expressed surprise and some dismay at the decision. Not so much on the fact that, as the EPA contends, the new regulations, would, by reducing sulfur dioxide and other dangerous emissions, reduce the number of major illnesses, heart attacks, by tens of thousands, which would save up to 100 billion in health insurance costs and untold lost work hours, both of which would benefit the financial health of employers along with the physical health of their employees. But, the EPA rules enabled the companies to make deals with smaller more efficient companies which reduced emissions, to buy and use their reductions as credits and other incentives that favored big firms. Only a small minority of the utility companies, those who challenged the ruling in court, were against it. The majority were willing to live with and profit from it and "they're not happy with this development."
Besides the health danger that this decision represents, it portends the struggles that any progressive administration will face as it seeks to revive regulation of industry and enact pro labor pro social welfare, and pro environmental legislation. Republican politicians can be swept out of office. Federal Society judges and even Justice Department and other agency officials with Civil Service protections can't be. A crisis probably as great as the one in the 1930s, when Franklin Roosevelt fought to re-organize the court (which he eventually did) and the New Deal coalition used mass protest and pressure to push the court into accepting Social Security, Minimum wages, unemployment insurance, the National Labor Relations Act, and other New Deal legislation which it had previously rejected. Before that battle can be fought, the Repub licans will have to be swept from office. If and when that happens, the battle to force the present federal judiciary to accept progressive legislation and to begin to reconstruct a progressive judiciary will have to begin.
