Glenn Scherer

How Bad Is the Toxic Legacy Left Behind From Colorado's Floods and Other Extreme Storms?

TV news does an incredible job of capturing the immediate, heart wrenching impacts of extreme floods: We all watched in horror as Colorado’s 1,000-year storm, and Hurricane Sandy and Katrina, ravaged homes and businesses.

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How Our National Parks Are Threatened by Fracking

When I was a teenager, a friend and I cruised across the U.S., touring our national parks. What I remember most from that 1977 trip is rolling over vast, wild, unspoiled miles, heading toward the Grand Canyon, Yosemite, and Zion.

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Climate Risks Have Been Underestimated for the Last 20 Years

Across two decades and thousands of pages of reports, the world's most authoritative voice on climate science has consistently understated the rate and intensity of climate change and the danger those impacts represent, say a growing number of studies on the topic. 

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Planet of the Plants

Humanity is on the threshold of a century of extraordinary bounty, courtesy of global climate change. That's the opinion of Robert Balling, former scientific adviser to the Greening Earth Society, a lobbying arm of the power industry founded by the Western Fuels Association. In a world where atmospheric carbon dioxide levels soar from the burning of fossil fuels, he says, "crops will grow faster, larger, more water-use efficient, and more resistant to stress." Quoting study after study, he invokes visions of massive melon yields, heftier potatoes, and "pumped-up pastureland." Bumper crops of wheat and rice, he says, will benefit the world's farmers and the hungry.

Balling's assertions are backed by solid science: Gaseous CO2 fertilization does cause remarkable growth spurts in many plants, and could create a greener planet with beefier tomatoes and faster-growing, bigger trees. But there's a catch: The insects, mammals, and impoverished people in developing countries who feed on this bounty may end up malnourished, or even starving.

A small but growing body of research is finding that elevated levels of atmospheric carbon dioxide, while increasing crop yield, decrease the nutritional value of plants. More than a hundred studies, for example, have found that when CO2 from fossil-fuel burning builds up in plant tissues, nitrogen (essential for making protein) declines. A smaller number of studies hint at another troubling impact: As atmospheric CO2 levels go up, trace elements in plants (such as zinc and iron, which are vital to animal and human life) go down, potentially malnourishing all those that subsist on the plants. This preliminary research has given scientists reason to worry about bigger unknowns: Virtually no studies have been done on the effects of elevated CO2 on other essential trace elements, such as selenium, an important antioxidant, or chromium, which is believed to regulate blood-sugar levels.

The less-nutritious plants of a CO2-enriched world will likely not be a problem for rich nations, where "super-sized" meals and vitamin supplements are a dietary mainstay. But things could be very different in the developing world, where millions already live on the edge of starvation, and where the micronutrient deficit, known as "hidden hunger," is already considered one of the world's leading health problems by the United Nations.

The problem of hidden hunger grew out of the 1960s "green revolution." That boom in agriculture relied on new varieties of high-yield crops and chemical fertilizers to staunch world hunger by upping caloric intake in the developing world. Unfortunately, those high-yield crops are typically low in micronutrients, and eating them has resulted in an epidemic of hidden hunger. At least a third of the world is already lacking in some chemical element, according to the U.N., and the problem is due in part to a steady diet of micronutrient-deficient green-revolution plants. Iron deficiency alone, which can cause cognitive impairment in children and increase the rate of stillbirths, affects some 4.5 billion people. Lack of iodine, another micronutrient, can result in brain damage and is a serious problem in 130 countries. According to the World Bank, hidden hunger is one of the most important causes of slowed economic development in the Third World.

Enter rising CO2 levels, which could exacerbate hidden hunger in this century. Current concentrations of atmospheric CO2 now exceed anything seen in the last 420,000 years -- and likely in the last 20 million years, according to the U.N. Intergovernmental Panel on Climate Change. And forecasts call for CO2 levels to rise dramatically, from today's 378 parts per million to 560 parts per million or more by as early as 2050. The micronutrient decline brought by these ballooning CO2 levels could collide dangerously with the developing world's nutrient-poor green-revolution crops and its exploding population. Scientists also worry about how plant nutrient deficiencies might destabilize the world's wild ecosystems in unexpected ways.

"This is one of those slow-motion effects that does not hit us like a hammer, so we don't notice it," says Irakli Loladze, an assistant professor at the University of Nebraska. But, he says, failing to notice the hidden hunger fueled by changing CO2 levels does not lessen its potential impact: "The structure of the whole food web could change."

Diet for a Nitrogen-Deprived Planet

Early carbon-dioxide enrichment experiments were relatively simple: All kinds of wild and cultivated plants were exposed in field or lab to current, doubled, and tripled levels of CO2, and scientists watched what happened. In more than 2,700 studies, plant growth typically exploded. Doubled CO2 levels resulted in an average increase in agricultural yield of over 40 percent.

But after about 1993, some scientists began to question this approach. While the early studies looked at overall growth, they ignored the nutritional quality of the bigger, faster-growing plants, according to Loladze. When researchers began measuring the nutritive value of CO2-enriched plants and feeding the vegetation to insects and livestock, they started getting discomforting data.

Those data reveal a clear pattern for the macronutrient nitrogen, the only dietary chemical element that has been extensively studied to date. Peter Curtis, a professor of plant ecology at Ohio State University, gathered 159 papers addressing the nitrogen-depletion problem and found a "reduction of nitrogen in seeds in both wild and crop species," he says. Some species, like soybeans, showed no change, while barley and wheat showed a 20 percent reduction.

Though Curtis doesn't see this nitrogen shortage as a crisis for industrial agriculture, where chemical fertilizers can make up nutritional shortfalls, he wonders how protein declines might affect "wildlife that rely on plant seeds -- insects, seed-eating birds, or mammals, for example. For them, the nitrogen levels are really quite important."

CO2-induced nitrogen deficiency in plants has already been shown to affect herbivorous insects and the carnivores that eat them. To make up for the plunge in plant protein, some plant-eating insects must dramatically increase their intake of vegetation. But unable to keep up with the need to eat enough food, some bugs suffer increased malnutrition, starvation, predation, and mortality, writes evolutionary biologist David Seaborg in a recent issue of Earth Island Journal.

When Western Michigan University entomologist David Karowe fed cabbage white butterfly caterpillars leaves grown in an atmosphere with double the earth's current CO2 levels, the insects ate about 40 percent more plant matter than under current atmospheric conditions. But they still couldn't meet their dietary needs. Their growth rate slowed by about 10 percent and their adult size was smaller. Peter Stiling at the University of South Florida made similar findings for leaf miners, insects that eat out tiny caverns in leaves where they live. When they took up housekeeping in CO2-enriched leaves, the insects had to eat out 20 percent larger leaf homes. But the bugs were still twice as likely to die of starvation as insects living at today's CO2 levels.

As serious as these results seem, no one should jump to conclusions, says William Mattson, chief insect ecologist with the U.S. Forest Service in Rhinelander, Wis. He has spent the past five years monitoring 10 insect species and found they react differently to raised CO2 levels and lowered nitrogen levels, with some showing no change and others harmed, and no clear pattern yet in sight. He worries, though, that CO2 fertilization and nitrogen depletion could combine to alter insect balances in unexpected ways. For example, the leaf miners described above were also four times more likely to be killed by parasitic wasps -- bad news for the miners but good news for the wasps. In another study, aphids reproduced 10 to 15 percent faster in enriched CO2 atmospheres -- good for the aphids, but bad for the crops they infest.

Sorting out CO2 winners and losers ultimately depends on your point of view. To most people, "good insects" pollinate our crops, provide food for fish and birds, and regulate wild and domestic plant growth, and their decline would be problematic. However, farmers would likely herald a population crash in "bad bugs" -- that is, crop-eating pests. Unfortunately, no one can guess what CO2-altered natural and cultivated systems might look like.

The problem gets more complex with bigger animals. Clenton Owensby of Kansas State University has conducted one of the most extensive CO2 experiments involving mammals -- specifically, sheep. "We got around a 22 percent increase in yield of forage grasses over an eight-year period in an enriched CO2 environment," Owensby says -- but, "over that same time period, we also saw an 8 to 12 percent reduction in nitrogen concentration in the grasses, with a 5 to 10 percent reduction in ruminant animal productivity." That, he says, could translate into longer times spent raising sheep and cattle in the future, shaving already thin profit margins from financially strapped ranches. The problem, Owensby says, is that sheep and cattle cannot digest forage directly; they rely on microbes in their guts to break down cellulose. But reduced nitrogen decreases the microbial population, which slows the rate at which the forage can be digested, which in turn slows the rate at which forage can be eaten, and ultimately the rate at which the animals grow.

Owensby assumes it will be easy for industrialized nations to compensate. They can add nitrogen supplements to livestock diets, though that will still add some cost to meat production. But this would not be so easy in the developing world, where livestock productivity is often already marginal. And it would be nearly impossible with wild ruminants, such as browsing deer, elk, and gazelles, among which nitrogen deficiency remains unstudied.

Oddly, air pollution from fossil fuels may help offset the negative impacts of increased CO2 in plants. Auto exhaust and coal-burning emissions have increased nitrogen deposits in soils in the farm country of industrial nations by up to 50 times natural levels, according to Christian Korner of the Institute of Botany at the University of Basel, Switzerland. While this brings with it other serious problems such as acid rain, it could help ease or even solve nitrogen and protein deficiencies. But not without other repercussions, says Curtis: "The bottom line is that the combination of high CO2 and high nitrogen favors typical human-camp followers, mostly weedy species," such as Canadian thistle, spotted knapweed, leafy spurge, and kudzu, all of which seriously damage croplands and ecosystems and compete with native plants. "That could lead to an acceleration in the decline of biodiversity," he says.

Elementary, My Dear

What about the other 24 elements known to be vital to the human diet? Precious few studies have been conducted on these micronutrients, but the University of Nebraska's Loladze surveyed the entire available scientific literature. He found that an overwhelming number of the three-dozen-plus experiments conducted to date showed that CO2 enrichment caused a significant decline in one or more micronutrients, which include zinc and magnesium.

"It is obviously known that carbon dioxide boosts plant growth; it is after all a 'greenhouse' gas," says Loladze. "Even a high-school student in New Zealand growing plants with high amounts of CO2 was able to grow huge tomatoes. But when she investigated their quality, it turned out that the tomatoes had lower levels of micronutrients, and less nutrition in them."

Loladze, to his dismay, found just two studies on rice, the world's most important crop, and four on wheat, the second most important. One rice study found that four out of five elements decreased when grown in CO2-enriched air, with nitrogen dropping 14 percent, phosphorus 5 percent, iron 17 percent, and zinc 28 percent. Only calcium showed an increase, of 32 percent. The other rice study showed no significant change in micronutrient levels. In wheat, on average, every measured element except potassium declined in three studies. A just-published study by Chinese researchers led by Dong-Xiu Wu found that while high CO2 levels significantly increased grain yield, they severely decreased nutrient quality: nitrogen concentrations fell by 15 percent, phosphorus by 36 percent, potassium by 23 percent, and zinc by 32 percent.

Mattson points to still another problem with CO2. "Something else that may exacerbate micronutrient deficiency is that added CO2 tends to drive up [the production of] many plant non-nutrients" -- poisons that enhance plant defenses against their would-be consumers. "The sum total of lowered nitrogen, lowered essential micronutrients, and heightened [plant poisons such as] tannins and other phenolics could be the worst kind of soup," he says. What we're doing, he believes, is running an unregulated and probably irrevocable chemical experiment on earth's ecosystems.

Dude, Where's My Carbon?

Now that researchers have detected CO2-induced nutrient deficiencies, they are seeking to understand why they happen. And they think they have found some relatively simple underlying causes -- simple to scientists, that is, although perhaps not to those of us who glazed over in high-school biology.

We live in a carbon world, scientists explain: All life on earth, from oranges to orangutans, is carbon-based. Most of this carbon comes from our atmosphere, which is absorbed by plants, which pass it on to grazing animals, which in turn pass it on to their predators. Change the levels of atmospheric carbon, and all plants and animals along the chain may be affected.

Here's how: Plants create much of their biomass out of thin air, from a steady diet of CO2 sucked through small leaf openings called stomata. Then, via the miraculous sleight-of-hand known as photosynthesis, the plants combine CO2 and water in the presence of chlorophyll and sunlight to make carbohydrates, simple sugars, and complex starches, which provide energy for plant growth. Much of the remainder of what plants need -- nitrogen and trace elements -- doesn't come from the air, but is pulled up through the root system from the soil.

Scientists have isolated two mechanisms that potentially explain how elevated CO2 levels reduce plant nutrients. The first is a "biomass dilution" effect. As plants absorb more airborne carbon, they produce higher-than-normal levels of carbohydrates but are unable to boost their relative intake of soil nutrients. The result of this dilution effect is increased yields of carbohydrate-rich fruits, vegetables, and grains that contain lower levels of macro- and micronutrients. Put simply, a bite of bread in our current CO2 atmosphere ends up being more nutritious than one in the CO2-enriched atmosphere of the future.

A second problem: Plants exposed to increased CO2 levels start to narrow the stomata through which they inhale CO2 and exhale water vapor via transpiration. This benefits plants by making them more drought resistant, but it also means that fewer waterborne nutrients flow into the roots. According to Loladze, if carbon-dioxide levels are doubled, transpiration decreases by about 23 percent.

A particularly disturbing study suggests that the mechanisms of CO2 nutrient depletion may already be causing a decline in the quality of our food supply. Josep Penuelas of the Center for Ecological Research and Forestry Applications in Barcelona, Spain, compared historical plant samples grown at preindustrial levels of atmospheric CO2 with modern equivalents. He found that today's plants had the lowest levels of calcium, copper, iron, potassium, magnesium, sodium, sulfur, and zinc than at any time in the last three centuries.

Research for Tomorrow

The obvious way to reduce the risk of declining food quality is to cut fossil-fuel emissions, thereby reducing atmospheric CO2 concentrations. But political resistance in the U.S. and the global failure to effectively curtail emissions means that CO2 levels will rise far higher in coming decades. Therefore, scientists say, we need to quickly embark on a crash program to research the biochemical impacts of CO2 and prepare for the potential nutritional harm.

"Nobody really knows how serious the changing chemical composition of plants caused by heightened CO2 will be," warns Mattson. "We are just scratching the surface here. ... It is a wide-open question about what impact this will have on the nutritional physiology or reproductive success of animals."

Loladze agrees that three dozen studies, or even 200, prove nothing conclusively. Curtis suggests a novel fast-track strategy for quickly expanding that database: He says that data may not need to come from new experiments, but may already exist "as archived seeds" and other stored vegetative matter left over from the 2,700 CO2 plant experiments already completed. Korner, however, calls for an aggressive new round of nutrient experiments conducted on a global scale.

Such massive research would require major funding, something the Bush administration seems unlikely to provide. Still, throw more money at the problem, agrees Mattson, and, "you'll get more people working, and you'll accrue the knowledge faster. Whether it can influence policy, that's difficult to say. We have an administration that has its mind set on what the policy should be. And it's always possible for them to say we just don't know enough yet to act. It's a [faulty] defense anyone can employ: to say, 'there is so much unknown; let's not do anything.'"

At some point, though, there will be a tipping point, which is what most worries scientists like Mattson. He looks at the vast array of harm caused by increased greenhouse-gas levels -- melting ice caps, extreme weather, the altering of wildlife habitat, and the biochemical impacts of rising CO2 levels -- and concludes, "You push something a little bit every year over the long term, and you see little or nothing changing. And all of a sudden ... one of those nonlinear changes occurs, where you push everything just far enough, and you're over a cliff."

Courting Disaster

William G. Myers III is George W. Bush's choice for a lifetime position on the U.S. 9th Circuit Court of Appeals. That court's jurisdiction covers three-quarters of all federal lands, in nine Western states where contentious battles rage over energy, mining, timber and grazing.

Unlike most judicial nominees, Myers has never been a judge. Instead, his qualifications include decades as a paid lobbyist and lawyer to the coal and cattle industries. In his recent position as the Bush Interior Department's chief attorney, Myers tried to give away valuable federal lands to a mining company and imperiled Native American sacred sites. "His nomination is the epitome of the anti-environmental tilt of so many of President Bush's nominees," says Sen. Patrick Leahy (D-Vt.).

Democrats aggressively blocked Myers' appointment with a filibuster in 2004. So when his nomination lapsed at the end of this past congressional session, many legal experts assumed it was dead, along with the nominations of nine other judicial candidates that were blocked by Senate Democrats for their extremist ideology, industry ties and/or ethical problems. But on Dec. 23, while Americans were distracted by the holidays, the president gave his corporate backers (especially those in the energy and mining industries) a Christmas present: He announced his intent to renominate seven of the filibustered candidates, including Myers. (The other three were given the option of being renominated, but withdrew themselves from consideration.)

"Renomination on this scope and scale of so many judges who the Senate has refused to confirm has never happened before," says Glenn Sugameli, senior legislative counsel for Earthjustice, a nonprofit public-interest law firm. Noting that Congress has already confirmed 204 of Bush's appointees, Sugameli asserts, "President Bush is trying to convert the Senate into a rubber stamp that will confirm 100 percent of his judicial nominees. That is what is really at stake here."

Also at stake is the future of the U.S. environment. While much attention over natural-resource protection is focused on the executive and legislative branches of government, most decisive battles for the environment are won or lost in the judicial branch. And with Supreme Court Chief Justice William H. Rehnquist fighting cancer, and three other justices in their 70s or 80s, the president may have the chance to fill up to four Supreme Court vacancies with right-leaning anti-environmentalists.

But as important as those nominations are, Bush's nominations to the lower federal courts are as crucial to the environment. While the Supreme Court takes on less than 100 cases per year, the circuit (or appellate) courts hear more than 40,000 appeals annually and set most legal precedents that become the law of the land.

There are currently 37 federal judicial openings, with 15 of those on the circuit courts of appeal. For the environment, some of the key open judgeships include three vacancies on the District of Columbia Circuit (the court that hears most environmental cases involving executive-branch regulatory agencies such as the Interior Department, the U.S. EPA, and the Army Corps of Engineers), as well as seven vacancies on the West's 9th Circuit.

"In many ways, the courts are more important than either Congress or the executive-branch agencies," says Patrick Parenteau, professor of environmental law and director of the Environmental and Natural Resources Law Clinic at the Vermont Law School. "Congress may enact the laws, but it does so in very broad, sweeping terms. It is the courts that interpret, apply, and enforce the statutes." Without the courts, such landmark legislation as the Clean Air and Water Acts could have been stillborn, he says. "If you don't have courts and judges willing to take a strong stand, those laws never take effect on the ground. They don't change how things are done. The courts give teeth to environmental laws."

President Bush, however, seems intent on extracting those teeth. And one of his key strategies for doing so is to pack the federal courts with right-wing extremists. The likely result could be one of the most heated Senate battles over judicial nominations ever, with some experts predicting the struggle will be a defining moment of Bush's second term.

Taking Care of Business

Perhaps the most disturbing trend in Bush's judicial appointees is their increasingly common links to industry. More than a third of Bush appointments to appellate courts and the U.S. Court of Federal Claims during his first term – 21 of 59 nominations since 2001 – have worked as lawyers or lobbyists for the oil, gas, and energy industries, according to a new investigation by the Center for Investigative Reporting. Three of these energy industry-linked Bush nominations have been made to the critically important 9th Circuit (with one confirmed so far), another nominated but not confirmed to the D.C. Circuit Court, and four confirmed to the little-known Court of Federal Claims, which deals with "takings" property claims made by developers and industry against the government. "The placement of the nominees suggests an administration strategy of nominating corporate-friendly judges in circuits where they will make the greatest impact," notes CIR. "In many cases, these same corporations and industries are also major campaign contributors to the Bush administration and the Republican Party."

Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst and expert on the history of the nominating process, notes that reliance on special-interest lobbyists to fill prime posts on the federal bench has been rare under past presidents, and he raises questions about the Bush justices' ability to be "fair-minded and objective." Goldman reveals in a 2003 Judicature journal article that 9.6 percent of Bush district-court appointments had come from large law firms with 100 or more lawyers, of the type that represent large corporations, while the percentage was just 2 percent under Jimmy Carter, 6.2 percent under Ronald Reagan, and 6.6 percent under Bill Clinton. Of recent presidents, only Bush Sr. recruited a slightly higher percentage of appointees from large law firms, coming in at 10.8 percent.

But Roger Pilon, vice president for legal affairs and director of the ultra-right Cato Institute's Center for Constitutional Studies, denies and downplays such industry ties. "Twenty-one out of 59 judicial nominees had close ties to mining and other extraction industries? It is factually nonsense," he says. "And even if it were true, so what?" Pilon contends that just because judicial nominees lobbied or lawyered for big business and big polluters, that's no reason to think that, once appointed, they will show bias toward their old clients and against the environment. He calls such thinking "Marxist class-analysis claptrap."

But obviously the National Association of Manufacturers thinks otherwise. This powerful business lobby is about to launch a multimillion-dollar campaign to aid the White House in its bid to win approval for its judicial nominations, reports the Los Angeles Times. The head of the association, former Michigan Gov. John Engler (R), a longtime friend of the president, implied in his Times interview that the appointment of federal justices is important to business, partly because of judges' roles in civil liability cases. (Such cases might include corporations being held liable for oil spills, damaged fisheries, toxic waste-causing cancers or birth defects, etc.) It's expected that pressure from the association's powerful members, such as General Motors, might force the reversal of some Democratic senators who fought Bush's most egregious corporate-connected nominees in his first term.

All of this strife over judicial nominations seems to challenge the old stereotype of an impartial U.S. judiciary. And indeed, a new study shows that political party affiliation does make a difference when it comes to the environment and judges. The study, by the nonpartisan Environmental Law Institute, looked at 325 federal trial and appellate court rulings between 2001 and 2004 concerning the National Environmental Policy Act, a foundation of U.S. environmental law that requires all federal agencies to take into account the impact of their actions on the environment.

It found that a plaintiff with pro-environmental goals had less than half the chance of success before a Republican-appointed judge (a 28 percent success rate) than before a Democratic appointee (59 percent success rate). Conversely, plaintiffs with pro-development or industry goals were successful only 14 percent of the time before Democratic appointees, but 58 percent of the time before Republican appointees.

The GOP judges' anti-environmental stance has grown more pronounced under Bush. Of the 23 NEPA cases heard by the president's appointees, only four were decided in favor of the environment – that's 83 percent of cases decided in favor of industry, a marked decline from the already poor environmental success rate scored with nominees of past Republican presidents. (The report does note, however, that the Bush judges have served for such a short time that more data will be needed to fully affirm this trend.)

The NEPA study "may or may not show bias on one or both sides," notes Sugameli. "But what it does clearly show is that who sits on the courts matters. It makes a difference, and affects people's ability to breathe clean air, drink clean water, and to enjoy special places."

Law and Disorder

Bush appointees, though relatively new to the federal bench, are already attempting to reinterpret landmark environmental decisions and change the way the statutes apply. In defiance of precedents and the public interest, the 9th Circuit's Richard R. Clifton in a dissenting opinion would have allowed a national-forest timber sale to go forward despite an environmental group's injunction to stop the sale. Meanwhile, the 5th Circuit's Edith Brown Clement and Charles Pickering (both Bush appointments) have joined in a dissenting opinion that would have allowed a commercial and residential development in Texas, despite the risk to listed endangered species living on the site.

But as troubling as this initial erosion of environmental statutes might be, and as damaging as it could eventually become to specific locales and species, worse may lie ahead. Though individual judges can do severe environmental harm, higher courts can still overturn their decisions. Now, though, some ultra-conservative Republican-appointed judges are working to challenge the very constitutionality of environmental law. And new Bush nominations to the appellate courts and Supreme Court could provide the majorities needed to achieve that goal.

"The most important long-term issue before the U.S. Supreme Court, and the lower courts, is New Constitutionalism," says Sugameli. This extreme anti-regulatory philosophy, also called New Federalism, has been refined by corporations, right-wing think tanks, and the ultra-conservative Federalist Society. Born in the Reagan era, New Federalism opposes big government, and especially the intrusion of the federal government into state and local public services and economic and regulatory matters, according to the Cato Institute web site.

New Federalism would repudiate a broad interpretation of the U.S. Constitution's Interstate Commerce Clause, upon which much of federal environmental law is based. Until the 1930s, this clause was used primarily to regulate trade between states. But from Franklin Roosevelt's New Deal era to the present day, judges have interpreted the clause as granting Congress the power to regulate business with regard to wage and hour limitations, health and safety and the environment.

Some Bush nominees, however, say Congress has no authority to enact such measures. William G. Myers, for example, has argued in amicus briefs submitted to the Supreme Court that federal clean-water and endangered-species safeguards are unconstitutional. The Cato Institute's Roger Pilon agrees: "The Endangered Species Act is utterly unconstitutional," and so are the Clean Air and Water acts "for the most part," he asserts. "The commerce power was written to ensure the free flow of commerce among the states," period.

Destroy that constitutional foundation and you deny Congress the authority to provide most environmental protections, thereby causing the entire federal environmental regulatory structure as it exists today to collapse. It is a radical strategy that, if successful, would shred the safety net of federal laws that has safeguarded the environment for more than 30 years, and which Americans have come to take for granted. Pilon urges that this safety net be replaced with a patchwork of state environmental laws, an approach whose utter failure helped prompt the creation of the federal EPA by Richard Nixon in 1970.

New Federalism doesn't stop there. Anti-regulatory judges – led by right-wing Supreme Court Justices Antonin Scalia and Clarence Thomas – also want to severely limit public access to the courts. In particular, they would like to outlaw most citizen lawsuits, thereby barring nonprofit environmental groups from launching cases against polluting industry, uncontrolled development, and unresponsive government.

Pilon contends, along with many Bush nominees, that environmental groups do not have "standing" – that is, they are not directly harmed (as an individual might be) by environmental damage, so they have no right to sue. Conservatives also say that neither environmental groups nor individuals have a right to sue when private industry damages the commons – public lands or waters owned by all of us. If a polluter harms the commons, they say, only the government has the right to sue. And if the government fails to act, the public's only recourse would be to vote out the unresponsive officials.

Barring access to courts is antithetical to democracy, says Sugameli. It biases the system against nonprofit citizen's groups and in favor of businesses. It is also prejudicial. "There is no question that corporations will continue to be able to go to court whenever they don't like an environmental protection," he says. "But there is a serious question as to how much citizens will continue to be able to go to court when they feel that environmental laws are protecting corporations and not people."

Bush conservatives have hit upon still another strategy for attacking the environment: property rights. If Scalia and Thomas were to be joined on the Supreme Court by like-minded Bush-appointed justices, they would have the majority needed to set precedents giving industry privileged private-property rights. "For at least 25 years, since President Reagan, the property-rights movement has asserted that property ownership is absolute and enshrined in the Constitution," says Jay Feinman, a professor at Rutgers University School of Law and author of Un-Making Law. That movement sees property rights as a core value of democracy, trumping the authority of Congress to make laws reducing pollution or preserving natural resources. When the government wants to protect air quality, wildlife, or wetlands, the movement contends, it must pay for all profits lost in the forsaking of economic activity, which industry leaders have cleverly – if erroneously – labeled "takings."

This very broad definition of property rights, based loosely on the 5th Amendment of the Constitution, has been repeatedly asserted by conservative Republican judges on the federal bench, and especially by Bush appointees. Myers has taken the extreme view that property rights should receive the same level of constitutional scrutiny as free speech. "What we've seen in the Bush administration is appointees who come out of this property-rights movement and have ties to industry, and who we can expect to advance the cause to undermine government regulation," says Feinman.

Going Nuclear

With Republican control over the executive and legislative branches of government nearly total, Bush's second term will likely be defined by a struggle to solidify control over the judiciary. Two of the best predictors of the probable intensity of that struggle will be the willingness of the Senate to ignore its own time-honored judicial appointment-approval rules, and the extremism of Bush's nominees for open judgeships.

In 2004, conservative Republican senators, angry over Democratic resistance to Bush appointments, began threatening to change Senate rules that would prohibit the blocking of judicial appointments through filibusters. The new rule would do away with the required 60 votes needed to approve judges and replace it with a simple majority vote. "This is called the nuclear option by its proponents, because even they recognize that such a move would blow up the Senate, ending all chance for cooperation on any issue," says Sugameli.

As the 2005 congressional session got under way this month, Senate Majority Leader Bill Frist (R-Tenn.) set the stage for this "nuclear war" by announcing that he will seek approval in February for an unnamed Bush judicial nominee. If Democrats filibuster that nominee, he says, then the nuclear option could come into play, reports the Associated Press.

Richard Epstein, a conservative law professor at the University of Chicago, is critical of the nuclear option but doesn't think it would "blow up" the Senate. "What is important is that the same rules apply to a Republican president and Congress as to a Democratic president and Congress," says Epstein. Democrats are hopeful that Frist will not dare launch the nuclear option, especially since Sen. John McCain (R-Ariz.) has come out against it, citing the divisiveness it would cause.

As for the extremism of Bush's second-term nominees, his renomination of the seven candidates already blocked by the Senate doesn't bode well for the environment. Among them are such property-rights extremists as Myers and Janice Rogers Brown, who was nominated to the D.C. Circuit and opposed by 35 national and state environmental groups. Brown has declared that the Supreme Court's 1937 decision upholding the New Deal as constitutional "marks the triumph of our own socialist revolution." And her extreme views on property rights caused her to claim that private property is now "entirely extinct in San Francisco" and that the city is implementing a "neo-feudal regime."

As for the Supreme Court, "All the indications are that the people being looked at to fill those vacancies [should they arise during Bush's second term] would include many with very extreme positions," says Sugameli. Bush could also try to elevate either Scalia or Thomas, his two favorites and the two most anti-environmental justices, to the chief justice position.

Bush's lifetime appointments to the federal courts – most of whom seem to be intentionally selected because of their youth – will shape and dominate environmental jurisprudence for many decades to come.

Right Young Things

Parenteau believes that the right-wing judicial strategies being pressed by the Bush administration amount to a corporate coup d'etat in which private special interests trump the public good and democracy. "It is probably not hysterical to characterize our situation as a constitutional crisis, because I feel that the majority values of this country are still strongly in support of strong laws protecting the environment. But what is happening is that those laws are being picked apart, dismantled, and deceptively, stealthily, slyly undermined. I think that our government's checks and balances are breaking down," as corporations gain a death grip on all three branches of government.

Sitting Supreme Court Justice David Souter has long warned against the judicial use of constitutional arguments to invalidate Congress's authority to regulate commerce – a tactic that could negate environmental, public-health, labor, minority, and women's civil-rights protections in one massive strike. New Federalism is not new, he contends, but will march America back to the Lochner era of the courts, which lasted from the post-Civil War period until Roosevelt's New Deal.

Joseph Lochner was a New York baker whose corporate right to force employees to work 60-hour weeks was upheld by the Supreme Court. For seven decades, the courts maintained a laissez-faire attitude about business practices, ruling that the economic sphere was off-limits to congressional regulation, and that private property, especially corporate private property, was sacrosanct. That era's policies spurred political and corporate corruption, spawning the Robber Baron industrialists, a yawning gap between rich and poor, civil unrest, labor strikes and riots, bomb-throwing anarchists, two presidential assassinations, fierce government repression, genocide against the American Indians, and the near extinction of the American buffalo. It was an era whose gross human injustices were only reversed by New Deal reforms.

In the face of a kind of Lochner-era redux, environmental groups have little recourse, Feinman fears. "Other than opposing judicial nominations, we have a real problem here. We can't just wait for the next election, or defeat a bill in Congress. With the judiciary, we are dealing with a matter of constitutional law. Once high courts rule in an area, there is nothing that can be done by executive action, or by legislation, to change things. That's the end of the story. We could see a rollback of environmental law as part of a much broader rollback of government protection of the public interest. Once again, what is good for General Motors is good for the U.S.A."

"Maybe the Cuyahoga River has to burst into flame again," concludes Parenteau, referring to a pivotal outrage in 1969 that helped launch the environmental movement in the following years. The United States may need to see drastic climate shocks, or Bhopal-scale tragedies, before the public becomes determined enough to reverse the Bush administration's judicial excesses. The political and social shape that such a rebellion might take – and how long it might take to emerge – is anyone's guess.

Revisiting Love Canal

On New Jersey's Newark Bay, millions of urban blacks, Hispanics and Portuguese Americans watch as a nightmarish page from the history of industrial pollution resurfaces near their homes. Their plight offers a lesson to the nation and the world.

Newark Bay's disturbing sense of déjà vu stems from 1978, when the blue-collar community of Love Canal, N.Y, saw its children sicken at a terrifying rate and learned that its homes were built beside a toxic waste dump. Residents pleaded for government help, but aid was slow in coming. Polluter Hooker Chemical stalled the regulatory machinery. Its lawyers denied the science that linked deadly waste to dying children, and the company avoided full payment for cleanup until 1995.

To assure that Love Canal would never happen again, Congress passed the Superfund Law in 1980 -- landmark federal legislation meant to make polluters pay for the harm they do.

Fast forward to Newark Bay, November 2003. Three conservation organizations announce plans to sue polluter Tierra Solutions within 90 days, for what the groups say is the worst case of in-water dioxin pollution in the United States -- maybe the world.

Jump ahead to Friday, Feb. 13, 2004. The groups -- NY/NJ Baykeeper, Hackensack Riverkeeper and the Natural Resources Defense Council -- find the toxic and legal legacy of Love Canal lapping at their doorstep.

Three days before the citizen suit is to take effect, the Bush EPA rushes in. It pre-empts the suit, shuts out the citizens and after more than a decade of inaction, cuts a deal with the polluter, allowing Tierra to conduct its own Newark Bay study. As one enraged activist put it, the decision is akin to "letting a pedophile investigate child abuse at a preschool."

A Dangerous Precedent

"I'm outraged," said Baykeeper Andy Willner, a party to the suit. "I have little faith in EPA's ability to oversee a fair evaluation of the Bay, and no faith at all in Occidental's compliance with this order. Occidental's only reason for signing with EPA is to avoid the citizen suit and delay the clean up."

"This sets a dangerous precedent," said Hackensack Riverkeeper Bill Sheehan, another plaintiff. "The EPA's action sends a chilling message to citizens who want to protect their right to a clean environment, and protect their children from polluters."

"I have no faith that [the contamination] will be remediated," NRDC attorney Jen Danis said flatly to the Associated Press, offering as proof an earlier 10-year Passaic River study run by the polluter that produced nothing but smoke.

As Willner and Sheehan note, there's more than coincidence linking Love Canal with Newark Bay. Both Hooker Chemical and Tierra Solutions, it turns out, are subsidiaries of the same hydra-headed monster: Occidental Petroleum, one of the planet's most heinous polluters.

In a just world, the bad press and bad karma generated by Love Canal should have bankrupted Occidental. Instead the company learned from history and thrives. With $9 billion in annual sales and 27 percent growth last year, it profits by a strategy common to transnational corporations since the Reagan era. It donates to electable politicians from both parties and gets huge returns on investment, no matter who wins. The company is among the top 15 contributors to federal election campaigns, giving more than $1.5 billion between 1995 and 2000.

The political favors Occidental gains from these gifts keep it well subsidized by government -- and insulated from prosecution for harm done to the environment and public health in the United States and globally.

Witness Democratic Vice President Al Gore, who forged strong financial ties to Occidental decades ago. In 1996, Gore paid back the company, brokering a deal to sell it the federally owned Elk Hill Oil Field in California -- the biggest turnover of U.S. public lands to a private corporation ever. Paradoxically, as Gore quietly tripled the size of Occidental's U.S. oil reserve, he lashed out against the "terrifying prospect" of fossil fuel-caused global warming.

Also witness Republican George W. Bush, whose run for Texas governor was well bankrolled by Occidental and other polluters. Once elected, Bush held secret meetings with the state's dirtiest industries, concocted a "voluntary pollution permitting program" that barely curbed emissions -- a program that let Occidental's chemical plants keep spewing a million pounds of poisons into Texas skies annually. Maybe it was as a "thank you," that retired Occidental Chemical Division CEO J. Roger Hirl raised $100,000 for Bush's 2000 presidential bid.

Far-Reaching Influence

Next, travel to Colombia to see the huge influence transnational companies can have on the molding of U.S. foreign policy. Under the guise of the War on Drugs and War on Terror, Occidental -- with partners Enron and Bechtel -- has gained full U.S. protection for its oil ventures.

Between 1996 and 2000, Occidental spent $8.6 million lobbying for U.S. foreign aid to Colombia. This year's package is set at nearly $600 million, including $147 million to protect Occidental's Cano Limon pipeline from rebel insurgents. That's equal to a U.S. taxpayer subsidy of $4.50 on every barrel of Occidental oil, according to Amazon Watch, an NGO. Since 1986, rebel attacks on the pipeline have leaked 2.9 million barrels of crude into the rain forests, an ecological disaster 11 times larger than the Exxon Valdez.

So notorious is Occidental's environmental record in Colombia that 5,000 U'wa tribespeople threatened mass suicide in 1997 rather than let the company drill on their sacred lands. The U'wa also claim that Occidental's surveillance planes assisted the Colombian army in targeting a peasant village, massacring 18 innocents and finding no rebels -- an alleged crime for which the U'wa are suing the company.

A recent look at Congress finds Occidental meddling with legislation at the cost of U.S. national security. The chemical industry, with Bush support, successfully lobbied to kill a post-9/11 bill by Sen. Jon Corzine, D-N.J., to heighten security against terror attacks at U.S. chemical plants. Legislators were well rewarded for their vote. Occidental paid out $238,000 in soft money to Republican candidates and $60,000 to Democrats in 2002, says the Center for Responsive Politics.

Finally, travel to Love Canal on Newark Bay, to a derelict factory in the Portuguese working-class section of Newark, on a Passaic River bend. Here in the '60s, Diamond Alkali Company (renamed Diamond Shamrock) made Agent Orange, the herbicide that disabled thousands of U.S. GIs, (some compensated by the Pentagon), plus many more Vietnamese peasants (never compensated).

In 1992, investigators revealed that Diamond's Newark plant knowingly contaminated its personnel with dioxin, the deadliest of synthetic chemicals. Workers were disfigured. Others sickened and died. Though more responsible chemical corporations eliminated dioxin from their manufacturing waste, Diamond did not, since that would have slowed production.

Instead the company in a sense "launched" Agent Orange as a weapon against the citizens of Newark. A deadly dioxin cocktail formed a perpetual slippery film on the factory floor. "Every other week or so" workers were ordered to hose the floors with sulfuric acid. The poison flowed into trenches, into the Passaic River, and eventually to Newark Bay and beyond.

So much toxic waste went through the plant's industrial sewer that it formed a reef in the river. Employees were directed to surreptitiously wade in, and with shovels "chop up" the toxic deposits so the reef wouldn't attract attention.

In 1983, New Jersey discovered the contamination, shut the factory, and Republican Gov. Tom Kean declared a state of emergency. Regulators rushed to vacuum poisoned city streets, capped 10,000 cubic yards of deadly waste, fenced the plant and posted a 24-hour guard. Both the factory and Passaic River were declared federal Superfund sites, though the EPA did nothing to clean up the waterway.

Ducking Responsibility

In 1986, Occidental bought Diamond Shamrock, knowing that under Superfund Law, the purchase made it liable for the river cleanup. But though the company collected Diamond's profits, it stonewalled on the Passaic, using the same winning strategies it learned at Love Canal. And still the EPA did nothing.

Meanwhile the Newark plant's signature type of dioxin spread as far as the Statue of Liberty, contaminating fish to unprecedented levels. In 2002, New Jersey found that eating even small quantities of Newark Bay blue crabs assured a 100 percent cancer risk. But non-English speaking urban immigrants, not knowing the danger, still pluck the shellfish from the waters and feed their families on poisoned crab.

Fearing litigation, Occidental sought more government favors to sidestep its responsibilities. Through subsidiary Chemical Land Holdings, it gave $200,000 to Washington, DC, lobbyist Dawson and Associates to pressure lawmakers to approve a corporate welfare scam ironically named the "Passaic River Restoration Initiative." The plan would force taxpayers to foot most of the bill for the Newark Bay cleanup, letting Occidental off the hook. If approved, PRRI could set a precedent for polluter amnesty across America.

Of course, Occidental isn't alone in its rogue corporate behavior. It is joined by transnational companies like Halliburton, Exxon and the ghost of Enron. All use wealth and influence to garner political privilege. All are accused of arrogant disregard for democracy, human rights, public health, worker safety, indigenous peoples and the United States and global environment.

All remain zealously defended by our government. This winter, as the EPA finally de-listed Love Canal as a Superfund site, declaring it clean, the administration took steps calculated to leave U.S. communities defenseless against big polluters. It not only shielded Occidental from the Newark Bay citizen suit, but failed to reauthorize Superfund -- bankrupting the program and freeing polluters of financial responsibility.

Enough. It is time to return the United States to its citizens and to law-abiding companies.

But to do so we must face the past. We need to travel the bleak trail down which companies like Occidental sent their victims, learning from veterans and Vietnamese citizens poisoned by Agent Orange, blue-collar children sickened by toxic waste, Newark Bay workers and immigrants dying of cancer, and violated indigenous peoples in Colombia. If we don't, we'll be doomed to replay Love Canal's horrors.

Americans should demand nothing less than the demise of transnational companies that assault the public good to profit the bottom line. We who have been unjustly taxed to provide huge subsidies to polluting industries that violate human rights must insist on answers to the same questions that a peasant survivor of the alleged Occidental/Colombian Army air raid asked:

"As a family member of the victims, as a witness, and a survivor, I seek the truth, justice, and reparations for the damages that were caused to my family... I am here to ask you, Occidental... what was your role? Why was our village bombed? I believe I have the right to know exactly what happened."

As our president and Congress reward rogue companies that soil the land, water, air and our nation's flag, we too have the right to demand answers and justice.

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