Can Federal Courts Save the Environment?
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The Washington Post, reporting recently on a series of court decisions rejecting high–profile natural resource decisions by federal agencies, suggested that federal judges are becoming increasingly frustrated by the Bush administration’s willingness to flout environmental laws and ignore scientific findings that hinder its pro–development agenda. This is welcome news for the conservation community, as it should be for a significant majority of the American public—Democrats and Republicans alike—who consistently tell pollsters that they support strong environmental protections. However, the current administration’s attack on federal environmental safeguards has been considerably more virulent and sophisticated than generally reported in the mainstream press. And the latest string of judicial opinions notwithstanding, there are significant limitations to federal judges’ ability to compel recalcitrant agencies to implement the law. Finally, and perhaps most disturbingly, the past six years have seen fundamental changes in the judiciary itself that may present hurdles to sound environmental management for a generation to come. The Bush team’s natural resources policies have lived up to widespread expectations that W’s election would make Washington a much friendlier town for drillers, loggers, off–road vehicle enthusiasts, miners, grazers, irrigators, power producers, real estate developers and other commodity interests. However, distracted by national security debates and bottled up by popular support for federal laws with a decidedly green hue, Republicans have largely failed in their efforts to re–write the environmental statutes during this administration, despite controlling both houses of Congress. That has left the job of carrying out the President’s pro–development policies to another group of officials that work within the beltway—appointees and top–level bureaucrats within the executive branch agencies. The problem is that changes from within administrative agencies can have consequences as far–reaching as the actions of Congress itself. Moreover, such policies are formulated out of the public eye, often with little or no debate or opportunity for outside input. Some of the actions of these administrative officials have been rather ham–handed and, as the Post noted, have consequently been struck down by court decisions. The U.S. Forest Service’s Roadless Rule, for example, crafted over years and the subject of hundreds of public meetings and an avalanche of supportive public comments, was summarily dispatched by the new management at the Department of Agriculture within days of Bush’s inauguration. In September, a federal judge reinstated most of the rule, pointing out that the administration had failed to point to “any new evidence” to justify jettisoning it. A federal court in Portland, Oregon, used even stronger language in flatly rejecting the National Marine Fisheries Service’s plan for saving salmon in the Columbia Basin. Recognizing that the plan actually protected federal dams’ capacity to produce hydroelectricity rather than doing much of anything to help fish, the judge termed the agency’s document an exercise “more in cynicism than in sincerity.” This sort of strong language was reminiscent of another Northwest judge’s observation in the early 1990s that federal agencies had systematically and deliberately ignored federal laws designed to protect northern spotted owls—actions that took place during the senior President Bush’s administration. There is another disturbing—and telling—connection between these two administrative end–runs around federal laws that conserve endangered species and their habitat. The very industry attorney who led the legal fight on behalf of the timber industry against legal protections for owls was hired more than a decade later by the George W. Bush administration to be a special counsel for the Fisheries Service. Consequently, the government’s interpretation of how the Endangered Species Act applied to salmon took an immediate 180–degree turn—to the detriment of the fish. One can read the same arguments about the meaning of the ESA in the timber industry’s legal briefs in the 1990s and in the Fisheries Service’s recent submissions to the courts. Today, such links between industry and government officials are the rule rather than the exception. Examples of this revolving door at the highest levels include former Secretary of the Interior and exКMountain States Legal Foundation (a proКextraction industry law firm) lawyer Gale Norton, and the current Undersecretary of Agriculture, ex–timber lobbyist Mark Rey. These and other well–placed administrative officials with industry pedigrees make crucial and often unseen policy decisions that directly affect vast lands and resources. They also have the power to write internal agency guidelines that interpret the meaning of environmental laws and guide their on–the–ground implementation. The Forest Service, for instance, recently gutted regulations implementing the National Forest Management Act that guided forest management for twenty–five years. The agency eliminated monitoring requirements, opportunities for public comment and the mandate to protect viable populations of forest wildlife. Without a vote by lawmakers and over the written protests of many citizens, the agency simply announced that it had made the most significant changes in federal forest policy in decades. Two lawsuits have challenged the new Forest Service regulations, and plaintiffs are hoping for an outcome similar to a court decision this past fall that threw out new regulations that made it easier for the Environmental Protection Agency to register new pesticides despite potentially adverse consequences for threatened and endangered species. While court actions favorable to the environment make news, the public generally does not realize the difficulties inherent in using the federal courts to correct abuses by federal agencies. In most cases where a federal judge weighs the validity of an agency action, he or she uses a scale that heavily favors the government. Federal law provides that a court must uphold an agency’s interpretation of science or its application of the law unless the agency has acted in a manner that is “arbitrary and capricious,” a standard that gives the benefit of any doubt to the government. While a significant number of Bush administration environmental initiatives and decisions have been so egregious as to fail even under this deferential standard, courts have still turned away legal challenges to many other agency decisions that, while dubious, judges couldn’t label as arbitrary. Finally, and perhaps most significantly, the Bush administration and congressional Republicans have worked to remake the courts themselves. Bush has nominated a host of highly controversial figures for lifetime appointments to federal judgeships. Many of the nominees have strong ties to the very industries and businesses whose disputes they will be called upon to decide as judges. For example, Bush nominated William G. Myers III—a former lobbyist for the livestock and mining industries who has likened federal management of public lands to King George’s “tyrannical” rule over the American colonies—to a seat on the Ninth Circuit Court of Appeals, whose jurisdiction includes the majority of the country’s federal land. After the Senate deadlocked on his initial nomination, Bush again nominated Myers to the judicial post; the nomination remains pending. Bush appointees that have won confirmation to the nation’s highest court may be poised to cast the deciding votes against some of the country’s most important environmental laws. This past summer, Chief Justice Roberts and Samuel Alito, the Supreme Court’s newest justice, voted with Justices Scalia and Thomas in favor of a dramatically curtailed reading of the Clean Water Act’s protections for the nation’s wetlands; only an opinion by Justice Kennedy saved many of these protections (though his opinion nonetheless cast the law in this area into substantial uncertainty). More crucial environmental cases potentially loom before the Court. In recent years, for instance, justices have narrowly refused to take up cases challenging the constitutionality of key provisions of the ESA. Shortly before his elevation to the Supreme Court, however, Roberts voted in favor of reconsidering a decision upholding the ESA protections for what he termed a “hapless toad,” in the process providing a possible preview of how the chief justice would vote if the Court does decide to examine the law’s validity. One more Bush appointee would create a solid hard–right majority on the Court for years. The courts have been an important brake against decisions by federal agencies bent on carrying out ideological directives that do not mesh with the nation’s environmental laws. And the strong language in some recent judicial opinions has emphasized the particularly blatant efforts of the current administration to circumvent laws it finds not to its liking. However, the federal courts generally correct only the worst legal abuses, while many of the day–to–day decisions by executive branch insiders continue to directly impact the nation’s ecosystems, species, forests, streams and wetlands. Further, efforts to shape the information that courts use to decide cases, as well as moves to add a pro–industry ideological bent to the federal judiciary itself, make it increasingly risky to rely on the judicial system as a primary means to protect the environment. Ultimately, the responsibility to ensure a sustainable future for current and future generations rests not with judges, but where it always has—with the American people themselves. Through our dollars, our comments, our votes, our actions and sometimes even our protests, we will shape our environmental legacy. Dan Rohlf is an associate professor of Law at Lewis & Clark Law School in Portland, Oregon. |