Bush Wages Legal Battle Against Environmental Law

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http://ens-news.com/ens/may2003/2003-05-02-10.asp

Bush Wages Legal Battle Against Environmental Law

 

 

By J.R. Pegg

 

WASHINGTON, DC, May 2, 2003 (ENS) - An empirical study released today shows that

the Bush administration has repeatedly used the federal courts to try and

undermine the National Environmental Policy Act (NEPA), a law environmentalists

describe as the " Magna Carta " of U.S. environmental policy.

NEPA, signed by President Richard Nixon in 1969, orders the federal government

to consider the environmental impact of it actions, consider alternatives and

inform the public of its assessments and decisions.

The report covers all 172 NEPA cases decided by federal courts in the first two

years of the Bush administration and finds that in more than half of these

cases, it has presented arguments to weaken the application of the statute.

" The Bush administration is hell-bent on weakening our environmental

protections, and has already established an incredible record of violating the

law while doing so, " said Rodger Schlickeisen, president of Defenders of

Wildlife.

" We have in this presidential administration the worst environmental lawbreakers

we have ever seen, " Schlickeisen said.

The study, compiled by Defenders of Wildlife and the Vermont Law School's Clinic

on Environmental Law and Policy, reports that in 94 cases over the past two

years, the administration has presented anti-NEPA arguments in court.

These arguments have been rejected by federal judges in 78 percent of the cases.

The administration's legal interpretations of NEPA, the report finds, frequently

support timber and oil companies and developers who seek financial gain from

public resources. Critics say the Bush administration is undermining federal

laws that safeguard the environment. Here the President walks with Secretary of

the Interior Gale Norton. (Photo courtesy the White House)In one case Bush

administration officials with the U.S. Forest Service issued an environmental

assessment that found " no significant environmental impact " for a proposed

timber sale of three million board feet from 3,340 acres, but then took timber

industry bids for a sale of 9.5 million board feet from 800 acres.

One federal judge referred to NEPA analysis presented by the Bush administration

that sought to aid a developer as " so implausible that it could not be ascribed

to a difference in view or the product of agency expertise. "

In a challenge to a federal rule that prevents roadbuilding in wilderness areas,

the Bush administration used a timber industry argument that noted the

environmental harm from a lack of roadbuilding in unroaded forests. The Ninth

Circuit Court of Appeals denied the administration and said that " NEPA may not

be used to preclude lawful conservation measures by the Forest Service and to

force federal agencies, in contravention of their own policy objectives, to

develop and degrade scarce environmental resources. "

Bush administration officials and supporters often say environmental groups

abuse the courts and prevent efficient management of the nation's resources and

public lands, but Schlickeisen says it is the administration's determination to

roll back environmental protections that is causing a slew of legal challenges.

" If we are going to protect the environment for our kids and future generations,

we simply have no choice but to try legal steps to stop them, " he said. " One

shudders to think of the number of times [the administration] must have broken

the law without being caught and taken to court by some citizen group. "

The report sheds further light on the partisan gap over environmental issues -

when the composition of the three judge federal appellate court panel was

comprised of a majority of Republican-appointed judges, the success rate of NEPA

hostile arguments was 60 percent. This compares to an 11 percent success rate

when panels had a majority of Democrat appointed judges where the majority.

The opinions in the cases analyzed by the report show a clear pattern of anti

environmental decisionmaking, said Karin Sheldon, professor of law and director

of the Environmental Law Center at Vermont Law School.

" Future judicial appointments by the Bush Administration seem likely to make the

situation worse and long-term impact of an actively anti- environmental

judiciary is potentially incalculable, " she said.

Of primary concern are nominees to serve on the 13 federal appeals courts - this

level of the judiciary is only superceded by the U.S. Supreme Court, which

typically chooses to hear less than 100 cases a year.

These 13 courts very often provide the final decision on legal challenges to

environmental rules and regulations and their judges are appointed for life.

The administration has tried to ease environmental oversight of logging within

the nation's forests. (Photo courtesy the Defend the Forests)With some 25 of the

179 federal appellate court judge positions at the 13 appeals courts currently

vacant, the Bush administration has an unprecedented opportunity to reshape the

character of the court.

Republicans currently hold majority in seven of 13 courts, Democrats with the

majority on two and the remaining four roughly balanced. Environmentalists

believe some of the administration's nominees bring clear hostility to many of

the nation's fundamental environmental laws.

For example, Jeffrey Sutton, who was confirmed this week to the U.S. Court of

Appeals for the Sixth Circuit is on record as arguing that the federal

government does not have the authority to enforce the Clean Water Act.

Pending nominee and current District Court Judge Charles Pickering, Sr. had

decisions dismissing claims by victims in toxic tort cases overruled by the 5th

Circuit, the court that the President has again nominated him to serve on.

The administration's Ninth Circuit nominee Carolyn Kuhl, a former Justice

Department lawyer under President Ronald Reagan and a current Los Angeles County

judge, challenged the Supreme Court's precedent on associational standing, a

longstanding legal interpretation that enables organizations to protect the

rights of their members in court.

John Roberts, a pending nominee to the U.S. Circuit Court for the District of

Columbia, defended a coal company's right to blast off the tops of mountains in

order to mine coal without concern for degradation to mountain streams and

rivers.

Texas Supreme Court Justice Priscilla Owen, a nominee for the Fifth Circuit, has

authored court opinions that favor polluters over the public and restrict public

access to public information.

Owen is " a particularly egregious example of extremist nominees that President

Bush has chosen for key courts, " said Glenn Sugameli, senior legislative counsel

with the nonprofit environmental law firm Earthjustice. Environmentalists warn

the Bush environmental legacy could have far reaching impacts that will harm the

nation's public health, wild places and wildlife. (Photo courtesy U.S. Fish and

Wildlife Service)Democrats voted Thursday to block a vote on Owen's nomination,

as they have done to prevent a vote on Miguel Estrada, a nominee to the U.S.

Court of Appeals for the D.C. Circuit.

Congressional Republicans said today they are considering an attempt to change

Senate rules or perhaps sue to ban judicial filibusters and President George W.

Bush called the filibuster of Owen " shameful. " Sugameli points out that the

Senate has confirmed more than 100 of the Bush administration's federal court

nominees.

" The Senate's constitutional duty of advise and consent requires it to block the

worst of the worst lifetime nominees, including Priscilla Owen, who has a clear

record of anti-environmental judicial activism, " he said. Conservationists,

including Defenders' Schlickeisen, further worry that the administration is

intent on limiting the public's right to appeal and participate in environmental

decisions through agency rule changes and legislation.

Last week, for example, the U.S. Forest Service said it is considering a plan to

stop accepting emails as legitimate comments on forest management plan, and the

administration supports current legislation that would limit appeal times for

the public to challenge hazardous fuel reduction programs on Forest Service

lands.

" This White House is also working overtime to eliminate those provisions of the

law that allow the public to challenge them in court, " Schlickeisen said. " This

is an administration that apparently will stop at nothing to weaken

environmental protection to benefit their supporters in industry. "

The full copy of the report can be found here.

 

 

 

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