Note: This article is a sidebar to this issue's feature story, "Tipping the scales."
Even when environmentalists do emerge victorious from court, their celebrations are often short-lived: Congress can overturn a court’s interpretation of an existing law by passing a new one. It’s not a new tactic, but it’s one that is especially favored by the right-wing Republicans who now control the White House and Congress.
In 2000, on behalf of the Center for Biological Diversity, Earthjustice sued the U.S. Navy for violating the Migratory Bird Treaty Act of 1918 during bombing exercises on a Pacific island. In the spring of 2002, the U.S. District Court in Washington, D.C., ruled in favor of the environmentalists: Judge Emmet G. Sullivan not only agreed the Navy had broken an international law, he also ordered all branches of the Armed Forces to comply with the law.
But instead of obeying the court injunction, Pentagon officials went to the House Armed Services Committee. Seven months after the court decision, in November 2002, the House passed the 2003 defense authorization bill — and with it a provision that exempted the military from complying with the bird treaty. Although the Senate never approved the proposal, when the differences between the two versions of the bill were reconciled in committee, the exemption was approved and then signed into law by President Bush (HCN, 1/20/03: 84-year-old bird law no match for the military).
That success encouraged the military to seek more exemptions from environmental laws: Last fall, Congress passed the 2004 defense spending bill, which gave the military exemptions from the Endangered Species Act and the Marine Mammal Protection Act. Now, the Pentagon is asking for exemptions from the Clean Air Act, Superfund, and the Resource Conservation and Recovery Act (HCN, 3/31/03: While the nation goes to war, the Pentagon lobs bombs at environmental laws).
In New Mexico, environmental attorney Letty Belin recently had a high-profile court victory overturned by the state’s congressional delegation. Representing a coalition of environmental groups, Belin won water for the Rio Grande’s endangered silvery minnow — first in the U.S. District Court in Albuquerque and again in the 10th Circuit Court of Appeals (HCN, 8/4/03: Truce remains elusive in Rio Grande water fight).
But within weeks of the appeals court decision, New Mexico Sens. Pete Domenici, R, and Jeff Bingaman, D, along with all of the state’s representatives, except Tom Udall, D, supported a rider on the 2004 water and energy spending bill that protects Albuquerque’s growth at the expense of fish. The rider prohibits the Bureau of Reclamation from using water from the San Juan-Chama Project — water pumped into the Rio Grande from the Colorado River Basin — to save any endangered species, not just the minnow.
Now, attorney Geoffrey Fettus, with the Natural Resources Defense Council (NRDC), is bracing for Congress to overturn one of his court victories. Fettus represented environmentalists and three American Indian tribes, who argued that the Department of Energy did not have the authority to reclassify its high-level nuclear waste as "incidental" waste. Reclassifying the waste would allow the Energy Department to take short cuts on cleanup at the Idaho National Engineering and Environmental Laboratory, Washington’s Hanford Nuclear Reservation and South Carolina’s Savannah River site.
Last July, the U.S. District Court in Boise sided with NRDC. Judge B. Lynn Winmill found that Congress "has spoken clearly on that subject" in the 1982 Nuclear Waste Policy Act, which established the rules for permanently disposing of radioactive waste.
The Energy Department immediately appealed the decision, refusing to negotiate. Then, in an Aug. 1, 2003, letter to Speaker of the House Dennis Hastert, R-Ill., Energy Secretary Spencer Abrahams asked for a legislative reversal of the case, and included a proposal to Congress that would give the Energy Department authority to reclassify the waste. In his letter, he argued that the "precise principle underlying the district court’s decision is somewhat unclear," and would delay cleanup at the three sites.
Republican lawmakers attached Abrahams’ proposal to the energy bill — an 816-page bill that the House passed last year, and which needs only three more votes to pass the Senate this year. If the provision doesn’t ride to the president’s desk on the energy bill, allies of the Energy Department are expected to add it to one of next year’s spending bills.
If Congress passes the provision, says Fettus, the Energy Department will be allowed to abandon high-level radioactive waste in those three states, or reclassify it for shipment to New Mexico’s Waste Isolation Pilot Plant. "This is not not an esoteric little quibble about the language of ‘authority,’ " he says. "If this legislation is passed, (the Energy Department) will be able to do what it wants with the (waste) tanks at Hanford along the Columbia River, and in Idaho, where there are hundreds of thousands of gallons (of radioactive waste) above the Snake River aquifer."
By passing new laws to overrule court decisions, Congress disables the system of checks and balances, a cornerstone of Democracy in the United States, says Peter Galvin, the California and Pacific director of the Center for Biological Diversity.
"The legal system is designed to adjudicate social and environmental disputes," he says. "But when the system is jerry-rigged, justice has a hard time prevailing."
The author is assistant editor for High Country News.