The Bush administration is perforating our basic environmental laws. Can a cadre of seasoned green lawyers stop it?
BOULDER RIVER WILDERNESS AREA, Washington — Todd True, one of the West’s battle-scarred environmentalist lawyers, has reasons to feel discouraged. But as he hikes here one spring day, he draws strength from the intact old-growth forest and a glacier-fed river that still supports salmon. They remind him what the legal battles are all about.
The forest embraces the trail beside the river, with giant moss-draped cedars, hemlocks, spruce and fir, up to seven centuries old, and a lush understory of ferns and berry plants. The air is moist from yesterday’s rain, with sunlight filtering softly through the canopy. Fallen trees lie undisturbed, their decay nursing new saplings.
As True hikes, sure-footed amid the roots and wet rocks on the trail, he reminisces about the 28 years, and the estimated 50 to 100 lawsuits, plus all the administrative appeals, in which he’s used environmental laws to preserve ecosystems like this one.
He was part of the first lawsuits to protect the northern spotted owl, winning an endangered species listing that led to the 1994 Northwest Forest Plan, which curtailed federal-land logging in the Pacific Northwest by 80 percent. He’s hurled barrages of lawsuits at not only the U.S. Forest Service and Bureau of Land Management, but also the Army Corps of Engineers, NOAA Fisheries, the U.S. Fish and Wildlife Service, the Bureau of Reclamation, and various state agencies, as well as the hydropower giant, Bonneville Power Administration. He’s lost some cases, but he’s won many others on behalf of salmon, river flows, stream buffers, grizzly bears, sea lions and human beings, including workers who have to handle toxic substances.
On the trail, it’s clear why True and lawyers like him have provided leadership for the environmental movement. He’s familiar with the science as well as the laws. Gesturing at the surroundings, he says the salmon need clean water, and this undisturbed ecosystem provides it. "Old-growth forests are probably the best water filters in the world," he says. "In a natural forest, you don’t get sediments flowing off into the streams."
He points to a single drop of water poised at the tip of a moss-encased branch. "It’s working," he says. "The rain is going to drip off and work its way slowly through the system down to the stream, and it’s going to be very clean when it gets there."
Even in the ancient forest, True seems to be constructing arguments for more lawsuits by his firm, Earthjustice. Such dedication is a character trait of environmentalist lawyers. And for the more than 100 of them who work in the West, it seems more necessary now than ever. The lawyers used to be able to choose the time and place of many of their battles, but these days, they must play an almost entirely defensive game, nonstop.
Their opponents, chiefly the Bush administration and its industrial allies, have mounted an unprecedented attack on the very basis for environmental lawyering: the laws passed by Congress to protect the land, air, water and human health. By shooting holes in all the laws at once, the Bush administration aims to weaken the lawyers’ ability to use the courts to enforce environmental protections. The consequences are likely to be felt from rainforests to deserts, and by thousands of sensitive plants and animals, as well as by people.
It’s shaping up as an essential struggle, as the lawyers defend the laws that have backed the environmental movement for three decades. "The courts are the place where the people without political muscle go to have a fair hearing," True says. "It was true for civil rights, the labor movement (and other movements) — the levelest playing field that environmentalists are going to get is in the courts. There is nothing more important to how our democracy works."
Environmental laws and lawyers are a formidable force now, but they haven’t been around all that long. They owe their existence to a relatively brief moment of national consensus — or shared anxiety — which lasted only from 1970 to 1980.
Spectacular catastrophes sparked it, beginning with the killing of songbirds by the insecticide DDT, as chronicled in Rachel Carson’s 1962 book, Silent Spring. Then, in 1969, the chemical stew of Ohio’s Cuyahoga River famously caught fire, and an oil spill blackened the beloved beaches of Santa Barbara, Calif.
Over the next decade, in "a relative blink of an eye ... the legal landscape transformed completely," wrote Richard Lazarus, a Georgetown University law professor, in the Virginia Law Review in 2001. By the time the flurry of lawmaking had ended, "there were hundreds of pages of federal environmental protection statutes," including the National Environmental Policy Act, the Clean Air Act, what we now call the Clean Water Act, the Endangered Species Act, the Superfund law, and more laws covering toxics, federal forests and rangelands, coal mining, noise, wild horses, archaeological sites, marine wildlife, coastal zones and estuaries.
As soon as Congress passed the new laws, environmentalist lawyers began suing industries and federal agencies, demanding tough enforcement. A few national groups pioneered this approach during the 1970s, including the Natural Resources Defense Council, the National Wildlife Federation and the Sierra Club Legal Defense Fund (now Earthjustice).
Today, the environmental movement’s largest national lawfirm, Earthjustice, headquartered in Oakland, has eight branch offices scattered from Seattle to Denver and Bozeman, Mont. The firm has about 280 lawsuits in play at any given moment, handled by roughly 150 staffers, including about 50 lawyers.
Regional lawfirms have also sprung up. The Western Environmental Law Center, founded as a law clinic at the University of Oregon in the 1970s, has a staff of 20, including 10 lawyers, based in Eugene, with branches in Taos and Boise. Advocates for the West, which was founded last year in Boise, has seven lawyers.
Dozens of freelance lawyers also specialize in Western environmental cases, and environmental law clinics associated with colleges harness students to work on cases.
Lawsuits have become the movement’s chief instrument, leading to many famous victories: banning DDT, saving California’s Mineral King Valley from the development plans of the Disney empire, slowing the spread of power plants and mines on the Colorado Plateau, and knocking out a gold mine near Yellowstone National Park, to name just a few. Lawsuits have pushed widespread reform on timber sales, and put pressure on grazing, mining and river management.
It’s surprising, however, that environmentalist lawyers continue to rely almost entirely on laws passed at least 24 years ago. Very little environmental lawmaking has occurred since the initial burst; Congress has amended some laws, but that’s about it.
It’s not that the nation doesn’t need additional environmental laws. Many basic issues have not been addressed: Mining on federal land is still a ludicrous giveaway, and the average fish still has no right to water — irrigators and developers can suck streams dry, even on federal land. Private landowners have little recourse if their land is turned upside-down for federally controlled oil and gas.
But the national consensus has dissolved. The major political parties have sharply diverged in how they view environmental protection. Republican leaders, beginning with President Ronald Reagan in the 1980s, decided the government should no longer have strong environmental laws; they have embraced their vision of property rights, insisting that the free market will solve all problems (HCN, 4/26/04: Out-sourced). While Democrats have generally stood up for environmental laws, many have waffled.
The public seems numbed by the bombardment of environmental scares and lawsuits. Many people have grown tired of being nagged, or they’re no longer optimistic that enforcement will work.
"The movement grew up relying on environmental laws and litigation, because that was about all they had," says John Leshy, a lawyer for the Natural Resources Defense Council in the 1970s, who became head lawyer for President Bill Clinton’s Interior Department in the 1990s. "Environmentalists got a little lazy in not nurturing or seeming to care that much about public opinion. There are some groups that do scorched-earth litigation — ‘We don’t give a damn what the public thinks or cares about, as long as we can beat (our opponents) in court.’ "
With no more banner agreements in Congress, the mechanisms of environmental law have degenerated. During the 1990s, environmentalists merely worked through the Democratic Clinton administration to strengthen many agencies’ regulations, which determine how the existing laws are carried out. Clinton got tougher on mining, allowing land managers to reject bad proposals, impose higher reclamation bonds, and limit the size of operations. He also cracked down on destructive grazing, and protected new national monuments and 58 million acres of roadless forests.
Clinton used regulations and executive action on the environment more than any president ever has, and he did it with great fanfare from environmentalists. He used his unilateral powers to carry out the intent of the nation’s environmental laws. But in the eyes of many Westerners, his methods were arrogant and unfair.
And the strategy had a fundamental weakness. That became painfully clear when George W. Bush moved into the White House, in early 2001.
If one president can change regulations via executive action, so can the next. And in the three short years since he landed in the White House, George W. Bush has gone on a shooting spree against the environmental laws.
Just a sampling of what Bush wants to undo now: the Clinton Clean Air Act regs reducing power plant emissions, the Clinton regs that toughened the Clean Water Act, the Clinton mining regs, the Clinton roadless forest initiative, the Northwest Forest Plan and the Sierra Nevada Framework, the Clinton ban on snowmobiles in Yellowstone National Park, the Clinton rule enabling transplants of grizzly bears to Idaho, the Clinton requirement that everyone must consult with wildlife agencies whenever actions might harm endangered species, and the fisheries management regs, coastal zone planning regs and hazardous waste regs.
At the behest of his industry advisors, Bush is trying to roll back more than 300 regulations or sets of regulations, according to a running tally by the Natural Resources Defense Council. The changes are proposed not only for Clinton-era regulations, but also for regulations as old as the laws.
In the grazing regulations, to take one example, Bush would make it more difficult for the public to get information and participate in BLM decisions. He would make it much more difficult for the BLM to crack down on overgrazing. And ranchers who poison eagles or commit other environmental violations would be allowed to keep grazing leases, as long as the violations occur away from their allotments. Ranchers would also be allowed to own stock tanks and other water developments, in effect giving them private property rights on public land.
It’s not the first time the environmental laws have been attacked, but it’s the wiliest, most widespread onslaught so far. The Reagan administration tried a head-on attack, symbolized by then-Interior Secretary James Watt, who tried to sell "excess" federal land and practically give away federal coal. During the 1990s, congressional Republicans under Georgia’s Rep. Newt Gingrich also attacked head-on, pushing the so-called "Contract With America," which openly tried to elevate property rights above regulations.
Back then, there were Democrats and some Republicans in power who defended the environmental laws (Congress held off Reagan, then Clinton stymied the Gingrich Congress). But there is no political-party balance now. The Democrats haven’t had much traction in Congress since Bush took office, and the Republicans act more in lock-step. It’s the first time in the life of the laws that a hostile party leadership controls both the executive and legislative branches.
The saber-rattling attacks by Reagan, Watt and Gingrich "all look so innocent now," says Buck Parker, head of Earthjustice. "They were straightforward, and the people doing it stuck out like sore thumbs." When Watt tried to sell federal coal for less than 1 cent per ton, even a politically divided public could see it was irresponsible. These days, the Bush administration professes a commitment to the environment, while ex-industry executives and lobbyists, appointed to key government positions, carry out a quiet assault deep within the agencies.
Jim Connaughton, for example, was a corporate environmental lawyer and lobbyist, with chemical and mining companies as his clients, before he joined Bush as chairman of the White House Council on Environmental Quality. Now, Connaughton oversees the efforts to wedge exemptions into roadless forest protection, delay the reduction of power-plant emissions, and suspend some environmental laws to allow logging in the name of preventing wildfires.
Connaughton shrugs off the alarm over all the proposed changes to the regulations. The federal government has about 35,000 pages of environmental regulations, and only a small portion of them are targeted, he says. Many businesses have fully complied with the laws by now, and, he says, "The arguments are increasingly around the margins — high-profile, high-intensity, but around the margins of a massive amount of just good old-fashioned progress."
One sign of progress, Connaughton says, is Bush’s effort to pay landowners for providing habitat for wildlife such as sage grouse. Bush also recently announced a new program that would pay landowners for creating wetlands. Connaughton acknowledges that such efforts have a degree of uncertainty, as they depend on appropriating federal funds for many years to come. But he insists, "These affirmative programs that are incentive-based, that generate no litigation and no conflict, and therefore no work for lawyers, (will deliver) millions of acres of benefit."
But tough laws and regulations are still necessary, most environmentalists believe, to keep up the pressure for various kinds of progress, even if only to nudge their opponents to the negotiating table. "All of environmental law is nothing more than a negotiation," says Oliver Houck, who was the National Wildlife Federation’s top lawyer in Washington, D.C., from 1971 to 1981, and is now a law professor at Tulane University in Louisiana. "It really doesn’t stop things, it just requires a less harmful way of doing things. We haven’t phased out water discharges, air discharges, we haven’t stopped projects from endangering endangered species, but we have cut back their impacts."
Houck sums up the Bush attack: "There are five big overlays of environmental law — air, water, hazardous waste, endangered species and public lands — and every one has huge regulatory proposals pending now that simply take the law out of the program. They make it voluntary, they take out the deadlines, they take out permit requirements, they redefine terms like ‘compliance’ and ‘best available technology’ — terms that have been understood for the past three decades to mean ‘A,’ and ‘A’ is very specific, and now they mean ‘B,’ and ‘B’ is often ‘anti-A.’
"It’s like watching thieves in a riot, and everybody is running from the store, with a television, with a refrigerator, with the booze," Houck adds. "I mean, I was a prosecutor during the (race) riots in Washington (in the late 1960s), and this is like a replay, only the guys who are running away with all the goods are now wearing suits, and they’re stacking them into their Mercedes rather than stacking them into the back of their pickup, and the stuff that’s getting looted today is orders of magnitude more costly and more damaging than what we were so earnestly prosecuting back in 1968."
To make things worse, the Bush administration has also developed its own style of courtroom aikido — a martial art that specializes in absorbing the energy of one’s opponent. The administration encourages lawsuits from the logging companies, homebuilders, snowmobilers and off-road drivers, as well as property-rights proponents, all of which challenge the laws and regulations. Then it effectively surrenders, by making only weak defenses in court, or hurriedly agreeing to settlements that cave in to the challengers.
Nine industry lawsuits have attacked the roadless forest initiative, winning at least one surrender by the administration. Five industry lawsuits have won capitulations on aspects of the Northwest Forest Plan. And the administration has bowed to dozens of industry lawsuits blasting away at the whole notion of endangered species listings and critical-habitat protection, reopening questions about the spotted owl, the marbled murrelet, 19 coastal salmon and steelhead stocks, the California red-legged frog, the cactus ferruginous pygmy-owl, the southwestern willow flycatcher, the western snowy plover, and dozens of other dwindling animals and plants on millions of acres of public and private land.
The administration’s lawyers, in the Department of Justice as well as in the environmental agencies, don’t merely roll over in the face of industry lawsuits. They often present legal briefs and arguments that reinterpret the laws as weaker, in effect trying to use the courts to make anti-environmental law.
In some cases, judges have lambasted the administration’s courtroom arguments. The administration’s position on coalbed methane drilling, said one judge, would "eviscerate" the concept of environmental impact statements. Its interpretation of "critical habitat" for the Mexican spotted owl "is nonsensical," said a second. And on the subject of public protests of salvage logging, a third judge called the administration’s arguments "mystical legal prestidigitation."
The Bush lawyers also have argued in several cases that the federal courts should have less authority over federal agencies. The U.S. Supreme Court will soon rule on the issue in Gale Norton v. Southern Utah Wilderness Alliance. The case began when the wilderness group sued Interior Secretary Norton to force the BLM to manage off-road drivers who were trashing wilderness study areas. But when the group won in the appeals court in Denver, the Bush administration put a dramatic spin on its appeal to the Supreme Court. The Bush lawyers argue that the courts cannot enforce a "non-impairment" standard in wilderness study areas, and cannot even require that agencies follow their own land-use plans or keep impact statements up-to-date.
It’s the most important wilderness case ever to reach the Supreme Court, and the implications go far beyond wilderness. The administration’s arguments would undo decades of precedent on the power of the courts to hold the federal government accountable for its actions — or lack thereof. "The issue is whether a citizens’ group can (use a lawsuit to) force agencies to comply with the law if they’re taking actions that are not effective," says Heidi McIntosh, an attorney for the wilderness group. "They’re trying to create immunity."
The Bush immunity argument is so extreme that 14 state attorneys general, including those of Montana, Nevada, California, Colorado, New Mexico and Oregon, have filed a brief opposing it. The states want to maintain their own ability to use lawsuits and courts to shape management of federal lands. "The federal courts ensure that federal agencies are proceeding in a thoughtful manner," the states argue in the brief. "(The Bush) contention is untenable and wholly dismissive of ... state interests."
"There’s been a long tradition in the law, of pretending that law is different than politics, but the line between the two is diminishing," says Michael Blumm, environmental law professor at Lewis and Clark College in Portland, whose 30 years in the field include stints with an environmental group and the Environmental Protection Agency. "Policies are driving the law in a much more transparent way ... through litigation, but it is not typical litigation, and it is done much more rapidly" than in the past. The change from Clinton to Bush, he says, has been the most abrupt and dramatic in living memory.
With the surge in industry lawsuits, and environmentalists filing more lawsuits to intervene, it’s like a storm of litigation. No fewer than eight environmental cases have landed in the current session of the Supreme Court, raising huge issues about executive power. In two cases, in January and April, the Supreme Court reined in states’ attempts to set their own air pollution regulations, deciding that Alaska can’t be looser, and California can’t be tougher, than the feds. And, in a case about Mexican trucks on United States roads, a ruling is expected soon on the frightening question: Can the president suspend environmental laws for foreign interests operating in this country?
And another wave of lawsuits is about to break. Many of Bush’s rollbacks are about to be finalized in the Federal Record, so environmentalists are preparing lawsuits claiming numerous violations of the laws.
All this is a monumental strain on environmentalist lawyers. Earthjustice spent $9.5 million ramping up for battle, running in the red for three years, hiring more lawyers and media people, and launching a national campaign criticizing Bush’s nominations for federal judgeships. The group closed an office in New Orleans to shift staff to reinforce its Western offices, because the brunt of Bush’s policies is felt here, Parker says. Earthjustice has raised enough additional money from donors and foundations to break even on an annual budget of $18 million (up 30 percent from six years ago), and will continue beefing up its staff, he says.
The Center for Biological Diversity, which specializes in endangered species lawsuits, doubled the number of its lawyers to six. Last August, the Center took over sponsorship of the environmental law clinic at the University of Denver, where students can crank out the lawsuits. The group plans to hire a couple more lawyers soon, says the Center’s Peter Galvin. "It feels like we need a couple hundred," he says.
When they’re playing offense, national groups like Earthjustice prefer to use lawsuits in orchestrated campaigns to influence policy, while smaller, more spontaneous groups like the Center fire off lawsuits in many directions. But now, the movement’s different legal strategies have converged: Everyone is playing defense.
The Bush administration has also made it harder financially for environmentalist lawyers. Many of them represent grassroots clients who can’t afford to go to court. Traditionally, when public-interest lawyers won cases, or could prove that their lawsuits caused some action on the problems at issue, the government paid attorneys’ fees. The government reimbursement helps the larger lawfirms, even though they raise most of their money from donors and foundations, and it’s crucial for many smaller firms and freelancers. But a 2001 Supreme Court ruling — a narrow 5-4 split — tossed out the so-called "catalyst theory," making it tougher for public-interest lawyers to prove their lawsuits have caused agencies to act on problems.
Known as the Buckhannon case, that ruling went against lawyers for a nursing home and its disabled and elderly residents. But "don’t think for a second that the Supreme Court didn’t know who they would be hurting with that decision — all the public-interest lawyers," says Bill Snape, chief lawyer for Defenders of Wildlife. The five justices in the majority were appointed by Reagan or by President George H.W. Bush.
The Bush administration takes advantage of the Buckhannon ruling, arguing in many environmental cases that when federal agencies act on problems, it has nothing to do with lawsuits. "We ran several hundred thousand dollars below budget last year and had to cut back this year, not because of funding cutbacks, but because we didn’t recover attorney fees," says Greg Costello, head of the Western Environmental Law Center.
In one case last year, Costello’s group sued the Army Corps of Engineers over a proposal to dam a wild and scenic river in Arkansas. The Corps revoked the permit for the dam, but then claimed its decision had nothing to do with the lawsuit. The law center spent $70,000 on the case and won no reimbursement, Costello says.
"So this allows the agencies to play Russian roulette," he adds. "They can make a lot of bad decisions, and the ones they are challenged on, they can revoke the decision, and not suffer having to pay the public-interest groups the attorney fees. There aren’t enough of us to challenge all the bad decisions, so some go through unchallenged, and they make us expend precious resources."
Even for groups that have shifted to local consensus negotiations, environmentalist lawyers are crucial.
"Here at this organization, we do not see businesses, or ranchers, or even (off-road motorists) as our sworn enemy," says Bruce Driver, director of Western Resource Advocates, a Colorado-based group that has six lawyers on staff. The group has reduced its reliance on lawsuits over the years, and put more effort into negotiating with utilities, winning concessions on pollution controls and renewable energy. "We like to engage the issues before they get to court," Driver says. But four of the group’s lawyers recently jumped back into the legal battles against the Bush regulatory changes that "streamline" oil and gas drilling around the West, because those changes can’t be ignored, Driver says.
Playing defense, the lawyers hope to at least delay the rollbacks and unfavorable settlements until the November election changes things in the White House or Congress — or until the movement can again stir the general public to focus on the ongoing catastrophes. The latter will be difficult with the distractions of the Iraq war, and the increasing negligence of news organizations (HCN, 10/13/03: The Big Story Written Small).
With so much in motion in the courts, it will take years for rulings on this entire generation of lawsuits, and no one can predict the final result. Environmentalists have won recent cases on wilderness, roadless forests, endangered species and logging, and lost cases on the same issues, as different judges make contradictory rulings. It seems the courts are subject to politics, too — not surprising, considering that the Republicans have appointed more anti-regulation judges since the 1980s (HCN, 2/16/04: Courting Disaster). Yet the courts remain the only government branch that subscribes to the ideal of impartiality, and that’s an ideal environmentalist lawyers cling to.
In a sense, says John Echeverria, director of the Environmental Law & Policy Institute at Georgetown University, "Litigation enforces the last consensus on the issues" – the national groundswell that led to the passing of the 1970s environmental laws – "which recedes further and further into the past."
Hiking in the Washington forest, Todd True says, "The laws and the courts are strong enough to withstand what’s going on now, if people pay attention and stay engaged with what is happening. I think people will insist on a balance."
And there is reason for some optimism: Environmental law is still making some headway, despite everything.
The states are getting involved, and not only in the Supreme Court’s wilderness case. Eastern states, in the drift of Midwest power-plant emissions, are suing against Bush’s so-called "Clear Skies" clean-air rollbacks. Environmentalist lawyers are also working to advance state laws, particularly on water, gaining a few rights for fish. Tribes have stepped up, too, with dozens of their lawyers working on behalf of salmon and other wildlife — based on treaty rights, often a stronger basis than the environmental laws alone.
When Todd True is at his desk or in court lately, he explains, he’s a very busy man. He’s helping to coordinate Earthjustice’s nine interventions in the industry lawsuits against the roadless forest initiative, helping make the arguments in the Supreme Court case, and working on perpetual lawsuits in effect challenging the entire salmon-killing dam system on the Columbia River. He’s also preparing new lawsuits to challenge the rollbacks on the Northwest Forest Plan, on spotted owl protection, and whatever else comes down.
But here in the forest, he pauses for a moment and gazes into one of the waterfalls along the trail. He remembers showing his kids how to pick huckleberries here when they were youngsters. And he marvels at the moss that lives on the rocks where the water roars down: "It’s incredible how the moss manages to hold on."
Ray Ring is HCN’s editor in the field, based in Bozeman, Montana. Freelance writer Lee Revere, based in Snohomish, Washington, helped set the opening and closing scene.
The following sidebar article accompanies this story:
- The Faces Behind the Lawsuits
Western Environmental Law Center headquarters in Eugene, Ore., 541-485-2471, www.westernlaw.org/frame.htm
Advocates for the West in Boise, Idaho, 208-342-7024, www.advocateswest.org
Western Resource Advocates headquarters in Boulder, Colo., 303-444-1188, www.westernresourceadvocates.org
Earthjustice headquarters in Oakland, Calif., 510-550-6700, www.earthjustice.org
White House Council on Environmental Quality in Washington, D.C., 202-395-5750, www.whitehouse.gov/ceq.