In a series of rather stunning responses to questions from Senators at his confirmation hearing today, Supreme Court nominee Samuel Alito defended his decision in a key public health and water pollution case to dismiss the lawsuit brought by citizens to clean up pollution in the Delaware River.
In restating his opinion that the citizens in the case “had not even alleged personal injury,” Judge Alito did acknowledge that the citizens “had alleged that enjoyed the Delaware River in a variety of ways”:
“As I recall, they walked along the canal path, they ate fish from the river, they drank water from the river. But there was no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.”
“Unless people can prove they are sick from drinking the water, citizens are going to have a tough time protecting waters that they use and care about from industrial pollution if Alito is confirmed,” said Joan Mulhern, senior legislative counsel at Earthjustice and clean water advocate. “Effectively, what Judge Alito is saying is: don’t drink the water.”
Mulhern noted that Judge Alito’s position on this case relates directly to two cases currently under consideration by the U.S. Supreme Court in which, if confirmed, he could determine the outcome. In these cases, developers and polluters are arguing that tributaries of larger “navigable” waters, like the Delaware River, should have no Clean Water Act protections at all, even if pollution from these smaller streams and rivers eventually flows down into the larger river.
“Unfortunately for the American public, Judge Alito’s comments indicate that he appears to share polluters’ disregard for the simple fact that waters flow downstream,” added Mulhern.