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
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.
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