Why judges intervene


A STRIKING development in our political system over recent decades has been the increasing involvement of federal judges in state and local problems. Judges, for example, have issued orders affecting the way officials may operate state hospitals, prisons, schools and other facilities.

Whenever it happens, people complain about interventionist judges. But few stop to consider why it happens.The fault lies not in our judges but in ourselves -- in the way American democracy now works, or rather does not work.

That is the lesson of a current case in Boston. The subject is Boston Harbor. As survivors of the 1988 election will remember, George Bush's advertising men paraded the polluted state of Boston Harbor on television. The ad was deceptive, but the pollution is a dismal reality. For years, sewage has been discharged into the harbor.

Three months ago federal District Judge A. David Mazzone issued an order forbidding the state to hook up any new sewer lines that would empty into Boston Harbor. The order had an immediate effect on construction projects not only in the city of Boston but in the entire metropolitan area. Even some completed buildings could not be occupied.

If you knew nothing that went before, Mazzone's order seemed drastic -- an "activist" intervention into local affairs, to use the favorite adjective of those who object to judicial decisions. But on the facts, the order was anything but that. It was an effort to carry out a careful, patient plan for the rescue of Boston Harbor: a plan that paid deference to local feelings but was being frustrated by local politics.

The discharge of sewage into the harbor is, and long has been, a violation of the federal Clean Water Act. In 1983 the Conservation Law Foundation sued to stop the practice, and two years later the Environmental Protection Agency weighed in. Mazzone worked out with various Massachusetts agencies a very gradual plan for compliance, taking 15 years.

Under the plan Massachusetts would build a new sewage treatment system for the metropolitan Boston area. It would cost $6 billion and be finished by the year 2000.

One item in the plan was construction of a landfill for grit, sediment and sludge. The landfill was critical, for without it the rest of the system could not go into operation. The design of the landfill was to be finished by November 1991 and construction to begin by September 1992.

State officials conducted a five-year search for a landfill site, surveying 299 possibilities. They preferred a location in the town of Walpole.

But Walpole did not want the landfill, and its politicians had enough leverage to block a needed bill in the legislature. The Republican candidate for governor last year, William Weld, said he would find another site. He was elected, and the whole plan seemed to be at a dead end.

It was in that situation that Mazzone issued his order. He invoked a remedy, barring new sewer hook-ups, that is spelled out in the federal statute. He imposed the bar only until Massachusetts clears the legal way for a landfill, so the plan to clean up Boston Harbor can go ahead.

The 1st U.S. Circuit Court of Appeals upheld Mazzone's order. Chief Judge Stephen G. Breyer said concern for state independence does "not give a state the legal power to violate federal law . . . or to place at risk a major compliance plan the very purpose of which is to reflect important state needs and interests by bringing the state into compliance only gradually, over time."

To paraphrase Johnson, the decision should focus the minds of Weld and legislative leaders wonderfully. Many of them, I would guess, are secretly glad to be forced to do what they know is right -- forced to override special interests and act in the general interest.

The Boston Harbor case tells us what is really involved, most of the time, in these judicial orders on local conditions. There is a stalemate of democracy. Everyone has a veto on everyone else. Nothing can get decided.

That we have to look to judges to focus our minds on pollution and decayed hospitals and overcrowded prisons is not a happy fact. But it will go on -- it must go on -- until we regain the ability to decide such issues for ourselves.

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