ALITO   (CONT)

The most troubling skeleton in Alito's judicial closet, according to Sierra Club senior attorney David Bookbinder, is the dissent he wrote in US v. Rybar in 1996. Alito advocated striking down a federal law banning possession of machine guns on the grounds that, in some instances, it exceeds congressional power under the Constitution's Commerce Clause. He argued that, as in-state machine-gun possession is not interstate economic activity, such authority should be conferred to state governments alone. This kind of reasoning strikes fear in the hearts of enviros, as the Commerce Clause is the basis for nearly every major federal environmental law in the US.

"If he is willing to find that Congress doesn't have that sort of authority over possession of machine guns, it makes you very concerned he will apply the same logic to Congress's authority over interstate pollutants," said Bookbinder.

This is particularly concerning to enviros given that three weeks ago, the Supreme Court decided to review Rapanos v. United States and Carabell v. Army Corps of Engineers, two landmark cases that challenge the reach of the Clean Water Act and call into question state-level versus federal authority to protect the environment. "The stakes are enormous," said Kendall. "If the federal government loses these cases, millions of acres of waters and wetlands could be left unprotected. And an adverse ruling would also call into question a much broader array of environmental safeguards."
It brings into sharp relief the potentially immediate impact of Alito's nomination, Kendall added: These cases are scheduled to be heard in the spring of 2006, so if confirmed, Alito would be in a position to cast a deciding vote.

Amanda Griscom Little writes Grist's Muckraker column on environmental politics and policy and interviews green luminaries for the magazine. Her articles on energy and the environment have also appeared in publications ranging from Rolling Stone to The New York Times Magazine.

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