Environmentalists and activists touted it as a victory last week when the U.S. Supreme Court decided it would not hear Kaiser Eagle Mountain v. National Parks Conservation Association et al, the decades-old legal battle over a landfill slated for a spit of land on the southern boundary of Joshua Tree National Park. But after reading through the legal briefs and Kaiser’s rejoinder to the highest court’s decision, I’m not so sure the battle’s over.
And I’m really not so sure, as a landfill opponents’ press release crowed a couple of weeks ago, that the Obama administration has recognized “the importance of Joshua Tree National Park to the American People.” I wish it were true, but despite the 106,622 signatures the landfill opponents gathered with the help of CREDO Action, nothing in the language I’m seeing from Interior upholds that. And Kaiser isn’t deterred.
Eventually the case made its way to the 9th Circuit Court of Appeals, where a three-judge panel in November 2009 upheld a district court’s decision that the land swap was indeed faulty. For one thing, the environmental impact study that was done to support it, as federal law requires, failed to adequately address the landfill operation’s potential to exacerbate “atmospheric eutrophication” -- the tendency of smog-borne nitrogen to settle on the desert floor and nourish invasive weeds. Beyond that, the study did not persuade the court that a garbage dump is indeed the “highest and best use” of the remote desert land, as the deal with the BLM would require, according to federal law.
Garbage dump on the edge of a national park? Highest and best use? A tough case, for sure. But as garbage has to go somewhere, not an impossible one.
So Kaiser petitioned the highest court for a better answer. And they got one – sort of and indirectly. What they got was affirmation from the U.S. Department of the Interior that it’s worth doing what both the district and appeals court told them to – go back and fix the deficiencies in the environmental impact study. A hair-splitting brief the U.S. Solicitor General filed on Interior’s behalf opposing a Supreme Court hearing of the case, said the opinion of the country’s nine top judges on this matter wasn’t really necessary. But it also affirmed that Interior remains convinced that the land exchange deal can work. All Kaiser and the BLM need to do are go back and address the court’s concerns with the environmental study, and get right back in business.
And all signs suggest that Kaiser plans to do exactly that. “Since the 9th Circuit Court of Appeals affirmed the BLM’s determination that the public interest is well served by the land exchange as required by law,” said Kaiser’s lawyer, Rick Stoddard, in a statement, “it is just a matter of working with the BLM to identify the best path that may be implemented to fix the identified deficiencies.”
One tries to be all balanced and reporter-like about these things, but it’s hard not to wish that, after all this time, Kaiser would just give up. In addition to raining nitrogen down on land where more nitrogen isn’t welcome – nitrogen deposition being one of the greatest threats the Mojave Desert faces in these climate-challenged era of exurban sprawl -- the landfill will also cause an orange haze to form over the south end of the park on hot days, of which, in the desert, there are many. And then there are the ravens, which follow human garbage, and pick off juvenile desert tortoises like scattered popcorn. A 2003 study using decoys showed that in the raven-infested areas that surround Mojave Desert landfills, the predation risk for baby tortoises is 100 percent.
But with $80 million already invested in the project, and a lucrative contract with Los Angeles County Sanitation Department, it’s hard to imagine that Kaiser’s battle for its national park adjacent garbage dump is over. Or that the Obama administration has so recognized Joshua Tree’s importance to America that they will defend its borders from smog and ravens.
When that happens, we’ll let you know.
Judith Lewis Mernit, an HCN contributing editor, writes from Venice, Calif.
Image of endangered desert tortoise courtesy Flickr user Jeremy Yoder.