I remember the first big story I covered for High Country News. It was back in the spring of 1994, and my headline shouted, "The salmon win one: Judge tells agencies to obey the law." The story focused on federal Judge Malcolm Marsh’s landmark ruling, in which he told the National Marine Fisheries Service that it had been "arbitrary and capricious" in determining that federal dam operations on the Columbia and Snake rivers posed "no jeopardy" to endangered salmon species (HCN, 4/18/94: The salmon win one: Judge tells agencies to obey the law).
Marsh ordered the government to quickly come up with a real plan to protect fish, and conservationists were ecstatic. Finally, they cried, the objective force of law would overcome the political clout and the inertia of the federal dam operators.
It was a slam-dunk legal victory. But as in basketball, one slam dunk does not win the game. Over the past decade, salmon advocates have struggled mightily to realize the promise of Judge Marsh’s decision. The federal agencies, aided by pro-industry leaders in Congress and the presidential administrations of Clinton and Bush, have only reluctantly changed the way they do business. Counter-lawsuits and legislative riders have further slowed progress. Though the dam operations today are improved, they still kill fish, and the salmon are still in trouble.
Thanks to our government’s system of checks and balances, every great Western environmental debate has taken a similar plodding, ping-pong pathway toward progress. Conservationists can get Congress to pass strong environmental laws, and they can sue when those laws are flouted. But even when federal judges agree with them, environmentalists are not assured of victory.
Not only are the three branches of government able to constantly correct each other (or foul each other up, depending on your viewpoint), but the one branch usually perceived as the sturdiest is actually quite susceptible to the sway of political winds, as this issue’s cover story by Ray Ring shows.
Federal judges are appointed by the president, and more often than not they reflect the president’s own political inclinations. The politicization of the courts — which George W. Bush is pursuing more enthusiastically than ever — has created an increasingly hazardous landscape for conservationists. It is one of the reasons why issues like the protection of roadless public lands, natural gas development, and snowmobiles in Yellowstone are being batted around by Congress, the administration and the courts, with no resolution in sight.
It’s a messy, infuriating system, but it’s our system, and if conservationists hope to make it work on behalf of the environment, then they must diligently work all three governmental branches — simultaneously.
They must actively oppose federal judge nominees who are ideologically opposed to environmental regulation and public ownership of land, and support those who are fair-minded and moderate. Fortunately, this is happening, as groups like Earthjustice and the Sierra Club turn a spotlight on the nominations process.
Environmental organizations are not waging this battle alone. They have forged alliances with other progressive coalitions — including labor and civil rights organizations — deeply concerned about the rightward shift of the federal courts.
This is a smart strategy, because in the end, intelligent teamwork, not one-on-one heroic slam dunks, is going to win the game.
Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at email@example.com.