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EARTH JUSTICE:  BECAUSE THE EARTH NEEDS 
          A GOOD LAWYER

By Buck Parker

No administration has a perfect record of complying with environ­mental laws. Throughout its 31 years Earthjustice staff attorneys have always had to bring suits on behalf of citizen groups to hold Cabinet officers and government agencies accountable to the laws that protect our natural resources, air and water. Whether the reigning administration is Democratic or Republican, left, center or right, pro-environment, anti-environment or indifferent, lawsuits and court orders are always needed.

Nevertheless, the current administration is in a class by itself. It’s not just that it is hostile to government measures to protect the environment. It’s that the administration is staffed at the Cabinet and sub-Cabinet level by a host of people whose primary qualification is that they have worked as lobbyists, lawyers and employees of the industries they now regulate and whose primary purpose is to roll back the environmental laws, regulations and programs they are now charged with implementing. Other administrations have been lax in enforcing environmental laws or have themselves run afoul of them, but these appointees have set out to weaken or eliminate the very laws themselves so that neither they, subsequent administrations, nor citizen groups can ever enforce them. In this, they are aiming at the very heart of Earthjustice’s mission.

Repealing environmental statutes would require Congressional action. That would be very public and would be politically damaging to many of the administration’s friends in the House and Senate. So instead, the administra­tion has chosen to go after the regulations necessary to effectuate the laws, preferably undercutting them in ways that mask its hand and prevent its being held accountable. And the best way it has found to do that is to feebly defend or settle lawsuits brought by one industry or another challenging the validity of environmental regulations.

It is this subversion of the judicial process, a process that assumes a truly adversarial position between litigants, that has become the defining characteristic of the administration’s anti-
environmental agenda. The purpose of this memo is to describe how that technique has been put to work and what Earthjustice, with your support, is doing about it. Although there are some environmental issues that have not yet wound up in the courts, the memo is almost a report card of where environmental issues stand at the end of the Bush administration’s first year.

PUBLIC LANDS

Federal lands, primarily in Alaska and the West, fall into four cate­gories: national forests, national parks and monuments, national wildlife refuges, and lands managed by the Bureau of Land Management. These categories are a convenient way of describing what is happening, so I will use it. Unfortunately, one could also organize a discussion of the public lands by the industry trying to lay hands on them: for starters, the timber industry, the oil industry, the natural gas industry, the mining industry, and the snowmobile manufacturers.

NATIONAL FORESTS: The Roadless Rule. An important goal of the timber, mining and oil and gas industries, and thus of the administration, is to rid

 themselves of the Roadless Area Conservation Rule adopted by the Forest Service just before President Bush took office. If left standing, the rule would protect the remaining 58.5 million acres of undeveloped national forest lands. The administration has put the right people in place to try to do the job. Its Undersecretary for Natural Resources and Environment in the Department of Agriculture, in charge of the Forest Service, is Mark Rey, who from 1976 to 1994 was an employee and lobbyist for a number of timber trade associations, includ­ing the National Forest Products Association, the American Paper Institute, and the American Forest Resources Alliance. Rey has an ally in the Justice Depart­ment, where the Assistant Attorney General for Environment and Natural Resources, charged with defending Forest Service regulations and all other public lands, is Thomas Sansonetti, a member of the Federalist Society, a staunch opponent of environmental regulations, and former lobbyist for the mining industry.

To date the administration has relied largely on any of nine lawsuits brought by Western states and the timber industry to eviscerate the Roadless Rule. Because the Justice Department hopes to lose these suits, Earthjustice lawyers have intervened in all nine to make the strongest possible defense. In the only suit that has approached a ruling on the merits, a federal judge in Idaho held last year that there were procedural flaws in its adoption. Not surprisingly, the Justice Department, which was quite happy with the outcome, chose not to appeal. We and our clients did. The Ninth Circuit Court of Appeals heard the appeal in October, and a decision could come any day. In the meantime the administration has moved to weaken the rule administratively by giving local Forest Service officials greater discretion to authorize road construction and other activities in small roadless areas without public review.

We cannot predict what the outcome of the Ninth Circuit case will be. In all likelihood there will be continuing litigation over the rule itself, over attempts to change the rule, and over attempts to develop specific roadless areas. One way or another, we will be waging the fight to protect roadless areas for as long as this administration is in office.

The Tongass. At 17 million acres, the Tongass National Forest in Southeast Alaska is by far the largest national forest in the country and contains the largest expanses of undisturbed temperate rainforest in the world. About 2.5 million acres of the Tongass are currently protected by the Roadless Rule (and not protected by it if it is repealed by the administration or held to be invalid by the courts). Of these 2.5 million acres, approximately 500,000 are protected independently of the Roadless Rule by restrictions in the current Tongass Land Management Plan. Unfortunately, the timber industry has also brought a suit challenging those restrictions. A federal judge in Alaska ruled in favor of the timber industry, and, as in the Idaho case, the Justice Department refused to appeal. Again, we did. Our hope is to reverse the district court and keep in place a layer of protection that will be critical to these 500,000 acres of virgin rainforest if the Roadless Rule is lost.

Salvage Sales and Public Review.

(continued on page 14)

EARTH JUSTICE:  BECAUSE THE EARTH NEEDS 
          A GOOD LAWYER

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(continued from page 13)

Salvage sales are sales of national forest timber that has been burned or infected by disease. Although the logging of burned and dead timber has a superficial appeal, burned-over lands are especially susceptible to the disturbance caused by logging equipment and to erosion, which in turn destroys streams and fish habitat. Moreover, the decaying timber, if left in place, provides the soil nutrients necessary to natural succession and forest regeneration.

 The law requires that the Forest Service provide the public an opportunity to appeal decisions to sell timber from national forests, including salvage sales. In December the administration tried to evade that requirement by having Mark Rey, the Undersecretary of Agriculture, sign off directly on the largest timber salvage sale ever proposed, the 46,000-acre Bitterroot sale in Montana. In this way they could take the legal position that it was not a Forest Service decision but a Department of Agriculture decision to sell the timber and that the appeals requirement did not apply. Staff attorneys in Earthjustice’s Bozeman office challenged the charade, and a judge in Montana quickly saw through it. The resulting court order should place some limits on the power of the administration to permit the logging of burned-over lands without providing the public with adequate information and an opportunity to appeal the decision.

Rocky Mountain Front. In 1997 the Forest Service imposed a 15-year moratorium on further oil and gas leasing on portions of the Lewis and Clark National Forest along Montana’s Rocky Mountain Front. The moratorium was soon challenged by the oil and gas industry. We intervened to show sup­port for the Forest Service when it does the right thing, but the stakes increased when the Bush administration took office and the litigation was still pending. Happily, we won the case before they could do much about it. All avenues in the courts have now been exhausted; what remains to be seen is whether the administration will now attempt to undo the moratorium as part of its National Energy Policy.

NATIONAL PARKS AND MONUMENTS.

Parks. During the presidential campaign the President promised that his administration would do more to protect national parks. That may not be true if the protective measures conflict with some corporations’ economic interests.

Yellowstone National Park is, literally, a case in point. In 2000 the National Park Service adopted a rule that would phase out most individual snowmobile use in Yellowstone and Grand Teton national parks, thus ending an experiment in opening them to snowmobile use that had resulted, not surpris­ingly, in noise, disturbance of wildlife, and intense localized air pollution.

Once again, industry and the administration have sought the cover of the courts to accomplish industry’s end. The International Snowmobile Manufacturers Association sued to overturn the ban, and the Bush administra­tion, rather than fight the case, agreed to revisit the entire issue before the reduction in snowmobile use goes into effect. Earthjustice intervened in the suit to defend the existing phase-out; the administration’s move to settle may pull the rug out from under that effort, but we will use our standing as intervenors to challenge any new rule that does not give priority to protecting the park and its wildlife.

Monuments. National parks are established by Congress; national monuments are established by executive orders of the President under the authority of the Antiquities Act of 1906. President Clinton established a number of new national monuments, primarily in the West, to protect natural and scenic areas and areas of scientific and archeological interest. Unfortunately, mining companies, energy companies, and off-road vehicle manufacturers have a financial interest in keeping some of these lands open to destruction.

Their chosen appointees in the administration had hardly unpacked before a number of industries brought suits challenging the legality of the new monument designations. Earthjustice moved to intervene and compensate for the lack of enthusiasm of the Justice Department in defending them. I’m pleased to report that in the two cases in which we have been active the courts have ruled that the executive orders are valid. We think that it is unlikely that any of the remaining challenges will be successful and that this particular issue is now behind us. Like the Bitterroot salvage sale and the Rocky Mountain Front litigation, this is a clear victory for environmentalists.

A second question was whether the incoming administration could still redraw the boundaries of national monuments to exclude especially coveted areas. Fortunately, lawyers within the Department of the Interior have con­cluded, as have we, that a successor President does not have that authority; any boundary line changes would require an act of Congress, and the votes simply aren’t there.

The remaining question is what sorts of uses can be permitted in national monuments, since the law still allows a federal agency to permit com­mercial activities within a monument if they do not diminish the values the monument was intended to protect. We expect that we will still see attempts by the Bush administration to permit oil and gas development or off-road vehicle use in some monuments and are prepared to bring suit to block any activity that would undermine a monument’s protective purpose.

NATIONAL WILDLIFE REFUGES. 

The preeminent concern, of course, is the Arctic National Wildlife Refuge and the Bush administration’s unwavering determination to open the Arctic coastal plain to oil and gas devel­opment. Although the issue is not (yet) before the courts, Earthjustice’s legisla­tive staff in Washington, D.C., is working very hard, along with many others, to ensure that Congress maintains the existing ban on oil development in the refuge. We expect a vote on the issue in the Senate as early as March and encourage all of our donors to make their voices heard. You can find current information and addresses on our web site, www.earthjustice.org,  as well as on the web sites of many of our client organizations.

(To be continued in a future issue.)