It was Eliot Spitzer, for instance, then New York’s attorney general and now its governor, who helped revive a dormant provision of the Clean Air Act known as “new source review” to force the cleanup of dirty plants grandfathered in under the original law. And it was New York, 11 other states, three cities (including New York City, which served as the lead city petitioner), American Samoa and various environmental groups that together brought the global warming case to the Supreme Court.
Yet all of these efforts would have been for naught had the courts not read the law the same way. Some cases, of course, were easier than others. In the salmon case, for example, the government advanced a weak (and preposterous) salmon “recovery” plan that, among other things, argued that dams were immutable parts of the landscape, like mountains, and could not be tampered with to help fish. James Redden, a federal district court judge, saw through this nonsense and ordered the government to draw up a more plausible plan. This week, he was resoundingly upheld by the Ninth Circuit.
The clean air cases were more difficult, involving complex industry arguments about measuring pollution — arguments that would essentially have allowed industry to evade the law. The Seventh Circuit ruled against industry’s position and the Fourth Circuit for it, but when the Fourth Circuit case reached the Supreme Court, the court (ruling on the same day it issued its global warming decision) came down firmly on the side of the law.
Nothing inspires litigation like environmental regulation, so these cases are hardly the end of the struggle. But so far — given the administration’s determination to roll back the law and the acquiescence, until recently, of Congress — we can be grateful for the existence of the third branch.