Bush Wages Legal Battle Against Environmental Law

by J.R. Pegg

NEPA, signed by President Richard Nixon in 1969, orders the federal government to consider the environmental impact of it actions, consider alternatives and inform the public of its assessments and decisions.

The report covers all 172 NEPA cases decided by federal courts in the first two years of the Bush administration and finds that in more than half of these cases, it has presented arguments to weaken the application of the statute.

"The Bush administration is hell-bent on weakening our environmental protections, and has already established an incredible record of violating the law while doing so," said Rodger Schlickeisen, president of Defenders of Wildlife.

"We have in this presidential administration the worst environmental lawbreakers we have ever seen," Schlickeisen said.

The study, compiled by Defenders of Wildlife and the Vermont Law School's Clinic on Environmental Law and Policy, reports that in 94 cases over the past two years, the administration has presented anti-NEPA arguments in court.

These arguments have been rejected by federal judges in 78 percent of the cases.

The administration's legal interpretations of NEPA, the report finds, frequently support timber and oil companies and developers who seek financial gain from public resources.

In one case Bush administration officials with the U.S. Forest Service issued an environmental assessment that found "no significant environmental impact" for a proposed timber sale of three million board feet from 3,340 acres, but then took timber industry bids for a sale of 9.5 million board feet from 800 acres.

One federal judge referred to NEPA analysis presented by the Bush administration that sought to aid a developer as "so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

In a challenge to a federal rule that prevents roadbuilding in wilderness areas, the Bush administration used a timber industry argument that noted the environmental harm from a lack of roadbuilding in unroaded forests. The Ninth Circuit Court of Appeals denied the administration and said that "NEPA may not be used to preclude lawful conservation measures by the Forest Service and to force federal agencies, in contravention of their own policy objectives, to develop and degrade scarce environmental resources."

Bush administration officials and supporters often say environmental groups abuse the courts and prevent efficient management of the nation's resources and public lands, but Schlickeisen says it is the administration's determination to roll back environmental protections that is causing a slew of legal challenges.

"If we are going to protect the environment for our kids and future generations, we simply have no choice but to try legal steps to stop them," he said. "One shudders to think of the number of times [the administration] must have broken the law without being caught and taken to court by some citizen group."

The report sheds further light on the partisan gap over environmental issues -- when the composition of the three judge federal appellate court panel was comprised of a majority of Republican-appointed judges, the success rate of NEPA hostile arguments was 60 percent. This compares to an 11 percent success rate when panels had a majority of Democrat appointed judges where the majority.

The opinions in the cases analyzed by the report show a clear pattern of anti environmental decisionmaking, said Karin Sheldon, professor of law and director of the Environmental Law Center at Vermont Law School.

"Future judicial appointments by the Bush Administration seem likely to make the situation worse and long-term impact of an actively anti- environmental judiciary is potentially incalculable," she said.

Of primary concern are nominees to serve on the 13 federal appeals courts -- this level of the judiciary is only superceded by the U.S. Supreme Court, which typically chooses to hear less than 100 cases a year.

These 13 courts very often provide the final decision on legal challenges to environmental rules and regulations and their judges are appointed for life.

With some 25 of the 179 federal appellate court judge positions at the 13 appeals courts currently vacant, the Bush administration has an unprecedented opportunity to reshape the character of the court.

Republicans currently hold majority in seven of 13 courts, Democrats with the majority on two and the remaining four roughly balanced. Environmentalists believe some of the administration's nominees bring clear hostility to many of the nation's fundamental environmental laws.

For example, Jeffrey Sutton, who was confirmed this week to the U.S. Court of Appeals for the Sixth Circuit is on record as arguing that the federal government does not have the authority to enforce the Clean Water Act.

Pending nominee and current District Court Judge Charles Pickering, Sr. had decisions dismissing claims by victims in toxic tort cases overruled by the 5th Circuit, the court that the President has again nominated him to serve on.

The administration's Ninth Circuit nominee Carolyn Kuhl, a former Justice Department lawyer under President Ronald Reagan and a current Los Angeles County judge, challenged the Supreme Court's precedent on associational standing, a longstanding legal interpretation that enables organizations to protect the rights of their members in court.

John Roberts, a pending nominee to the U.S. Circuit Court for the District of Columbia, defended a coal company's right to blast off the tops of mountains in order to mine coal without concern for degradation to mountain streams and rivers.

Texas Supreme Court Justice Priscilla Owen, a nominee for the Fifth Circuit, has authored court opinions that favor polluters over the public and restrict public access to public information.

Owen is "a particularly egregious example of extremist nominees that President Bush has chosen for key courts," said Glenn Sugameli, senior legislative counsel with the nonprofit environmental law firm Earthjustice.

Democrats voted Thursday to block a vote on Owen's nomination, as they have done to prevent a vote on Miguel Estrada, a nominee to the U.S. Court of Appeals for the D.C. Circuit.

Congressional Republicans said today they are considering an attempt to change Senate rules or perhaps sue to ban judicial filibusters and President George W. Bush called the filibuster of Owen "shameful." Sugameli points out that the Senate has confirmed more than 100 of the Bush administration's federal court nominees.

"The Senate's constitutional duty of advise and consent requires it to block the worst of the worst lifetime nominees, including Priscilla Owen, who has a clear record of anti-environmental judicial activism," he said. Conservationists, including Defenders' Schlickeisen, further worry that the administration is intent on limiting the public's right to appeal and participate in environmental decisions through agency rule changes and legislation.

Last week, for example, the U.S. Forest Service said it is considering a plan to stop accepting emails as legitimate comments on forest management plan, and the administration supports current legislation that would limit appeal times for the public to challenge hazardous fuel reduction programs on Forest Service lands.

"This White House is also working overtime to eliminate those provisions of the law that allow the public to challenge them in court," Schlickeisen said. " This is an administration that apparently will stop at nothing to weaken environmental protection to benefit their supporters in industry."