Our Rights, Our Future

A New Era of Freedom...for Polluters

Last month, the New York Times ‘Toxic Waters’ column published an article on the impact of Supreme Court rulings on the regulation of water pollution.  It begins:

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.

The article goes on to discuss the two Supreme Court cases that are collectively responsible for the decline in regulation of waterways. In 2001, the Court ruled in Solid Waste Agency v. Army Corps of Engineers that the Clean Water Act only applies to bodies of water that run between states and not those that are within states. This decision has left a good deal of intrastate bodies of water utterly without defense -- and, really, who’s to know if what flows underground in Kansas City, Missouri, will wind up in Kansas City, Kansas!

The 2006 decision in Rapanos v. United States further muddied the water. Five members of the Supreme Court -- four Justices who came to agreement plus Justice Kennedy, who wrote his own opinion --  limited the enforcement of the federal Clean Water Act, dismissing a lawsuit against a developer who was building a mall on a wetland. The bigger question before the Court, though, was whether federal law applies to wetlands, and if so, which wetlands can be regulated. 

Justice Stevens, who wrote a dissenting opinion, was critical of the Court for departing from thirty years of tradition in interpreting the Clean Water Act and also from the intent of the law, which was to protect the environment. He commented:

The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy today….

In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps’ resulting decision to treat these wetlands as encompassed within the term “waters of the United States” is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.…

In the end, the Court voted to dismiss the case against the developer.  But the justices couldn’t agree on which waters are covered by the Clean Water Act. This, in turn, created confusion at the Environmental Protection Agency regarding what the agency can regulate and, also, among potential polluters.

While these two cases may seem technical, they are very important in that they have brought about a new era of freedom for polluters. These court decisions present  another chapter in the recurring narrative of court actions that are weakening laws intended to protect Americans.

Access to a clean and safe environment is a basic civil and human right. The Clean Water Act's  objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”.  The law further states that “it is the national goal that the discharge into the navigable waters be eliminated by 1985.” Twenty-five years later, the Clean Water Act has made a big difference in our water quality -- but the past few years have seen a steady decline in enforcement.

Protecting the environment is not a partisan issue.  It's not Democratic or Republican. As Americans, we are all responsible for protecting the environment -- but we also assume that our government has the power to protect the air we breathe and the water we drink. It's upsetting to think that the majority of our top judges are protecting the economic rights of polluters and developers rather than the safety of our planet.

(Photo by tracyyxx.)

Grammy Award Winner Alicia Keys and Comedian Margaret Cho Join the NCRCR 2010 Youth Contest

The National Campaign to Restore Civil Rights is happy to announce the addition of artist/humanitarian Alicia Keys and comedian/civil rights activist Margaret Cho to the panel of judges for its 2010 Contest, which asks young people across the country for their views on equality.  More information is available on the contest site.

NCRCR Interview Series: Salazar v. District of Columbia

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Jane Perkins, Legal Director at the National Health Law Program (NHeLP), about the Salazar v. District of Columbia case regarding Medicaid provisions. Listen in as Perkins discusses the ongoing legal battle to ensure access to health care for children in low-income communities.

Perkins tied up the interview by reading part of a previous decision in the Salazar case:

This case is about people-children and adults who are sick, poor, and vulnerable-for whom life, in the memorable words of poet Langston Hughes, “ain't been no crystal stair”. It is written in the dry and bloodless language of “the law”-statistics, acronyms of agencies and bureaucratic entities, Supreme Court case names and quotes, official governmental reports, periodicity tables, etc. But let there be no forgetting the real people to whom this dry and bloodless language gives voice: anxious, working parents who are too poor to obtain medications or heart catheter procedures or lead poisoning screens for their children, AIDS patients unable to get treatment, elderly persons suffering from chronic conditions like diabetes and heart disease who require constant monitoring and medical attention. Behind every “fact” found herein is a human face and the reality of being poor in the richest nation on earth.

Good News for Religious Freedom, Amidst Continual Challenges Getting into Court

Ever since 1996, when Congress passed a piece of legislation known as the Prison Litigation Reform Act (PLRA), people in jail have had a harder time filing lawsuits in federal court to challenge conditions, denials of medical care, or harsh treatment.  Some cases do get into court, though, and the judiciary plays a key role in allowing prisoners to seek justice and enforce their rights.

A federal appeals court in New York recently heard arguments in a case involving a group of Muslim inmates at the Westchester County Jail who alleged that prison officials refused to serve them the Halal meat required by their religious doctrine. In Perez v. Westchester County Dept. of Corrections, inmates alleged violations of their right to freedom of religion and the ban on cruel and unusual punishment.  They also alleged that the jail violated their right to equal protection under the law by not providing treating them equally with Jewish inmates, who received Kosher meals. 

The district court denied a motion by the Department of Corrections to dismiss the case, and ultimately the case settled.  Under the settlement agreement, the jail modified its policies and agreed to provide Halal meat with the same frequency that it provides Kosher meat. This came on the heels of a similar ruling in Massachusetts that mandated that Muslim inmates could not be denied Halal meals on a daily basis. These cases represent a "significant departure from current case law with respect to Muslim inmates' equal protection rights to receive Halal meals containing Halal meat, as opposed to a vegetarian diet, which up until this case was arguably the constitutionally reasonable alternative meal plan."

Unfortunately, the Perez case didn’t quite come to an end with this progressive ruling. When the current and former Muslim inmates filed to have their attorney’s fees paid by the prison, as is standard practice for the winning party in these kinds of cases, the prison objected on a technicality that no one outside of the legal profession would enjoy hearing about. In short, the prison tried to avoid paying its due, or at very least to have their responsibility capped in accordance with another provision of the Prison Litigation Reform Act. Both the district court and the Court of Appeals ruled that while the inmates were entitled to fees, the PLRA did effectively limit how much they could receive.

The custom of awarding attorney’s fees to the party that wins a civil lawsuit is well-established.  The Civil Rights Attorney’s Fees Awards Act of 1976 states that, "In any action or proceeding to enforce a provision [of various civil rights statutes…], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs." Without just fee awards, there is little incentive for lawyers to take cases from people who cannot afford to hire them, such as many people who are in jail. The possibility of receiving attorney’s fees encourages lawyers to bring cases that benefit our society as a whole. We don’t mean to push the lawyer’s agenda here, but the act of capping the fees that attorneys can receive for defending these kinds of cases takes away some of the incentive to represent prisoners, denying people access to the courts when their rights are being violated.

In the midst of all the injustices that Muslim Americans have been facing in the post-9/11 era, it is reassuring to see that the courts remain open, even a crack, to enforce laws designed to ensure respect for the cultural and religious traditions of all people. We should, however, remain wary of the subtle ways that people are discouraged from seeking justice, and act to remedy them.

(Photo by dogbomb.)

 

NCRCR on The Huffington Post

The Campaign had a piece published on The Huffington Post yesterday! Check it out!

Thoughts on International Law in US Courts: Our Constitution or Blackstone's?