With diminished political influence at the
White House and on Capitol Hill, environmental groups increasingly
and successfully are turning
to the courts for help in blocking efforts to relax or scrap
environmental protections.
Shortly after assuming power, the Bush
administration began to recast federal environmental rules governing
utilities, energy producers, manufacturers and logging interests and
were challenged by environmentalists. The courts have upheld tough
new clean air standards for vehicles and power plants, blocked oil
and gas exploration in southern Utah and barred new permits for mountaintop
mining and dumping in Appalachia.
Last month, a federal appeals court in
California ordered the government to reinstate a Clinton
administration rule that will protect nearly 60 million acres of
national forests from logging and road construction -- a setback for
the administration and timber companies that sought to weaken or
kill the measure. The Sierra Club, the Natural Resources Defense
Council and other major environmental groups have intervened in
litigation several times -- including the logging case -- when the
administration refused to defend regulations from legal challenges
by industry.
"There clearly is a greater reliance by
environmentalists on the courts," said Buck Parker, executive
director of the Earthjustice Legal Defense Fund, the nation's
largest nonprofit environmental defense practice. "The courts
are being viewed as the last line of defense, because the Bush
administration cannot be counted on to put up an active defense when
industry sues to challenge regulatory actions."
Earthjustice employs 50 lawyers nationwide and
spends $18 million a year representing environmental groups in legal
actions. Since President Bush assumed office in January 2001, the
group's caseload has nearly doubled, Parker said, from an average of
58 cases a year to 100.
Business groups, industry lawyers and some
government officials acknowledge that environmentalists have been on
a legal hot streak recently, but note that industry representatives
have scored important victories of their own. A suit brought by
snowmobile manufacturers and sporting organizations helped thwart
efforts to phase out snowmobiling in Yellowstone and Grand Teton
national parks, while a 2001 Supreme Court ruling weakened Clean
Water Act protections for hundreds of thousands of miles of small
ponds, streams and wetlands.
"I don't see any type of trend that's
going for environmental groups or going against industry
groups," said Jeffrey Marks, director of air quality for the
National Association of Manufacturers.
Mark Rey, the Interior Department's
undersecretary of natural resources and environment, said in an
interview that although the volume of court cases has not increased
dramatically, environmental groups have been highly effective in
choosing their targets.
"I think they've always had a pretty good
track record in terms of winning," he said recently. "If
you're the plaintiff, you pick your fights. And that's part of what
causes us to try to do our jobs right, because we know they'll be
watching."
Once a powerful lobbying force with strong
ties to officials in the executive branch and in Congress,
environmental groups have lost considerable access and influence
since the Republican political comeback beginning in 1994. For
decades, environmentalists and their allies were successful in
playing Congress off the White House to protect hard-won legislative
and regulatory gains, and they enjoyed support from Democrats and
Republicans.
"Now they have one branch left to turn to
to try to see if they can throw up some roadblocks -- and that's the
judicial branch," said Richard J. Lazarus, a Georgetown
University law professor.
Environmental groups have received sympathetic
hearings in the U.S. Court of Appeals for the 9th Circuit in San
Francisco, which handles many of the western land use cases and is
one of the most liberal circuits in the country. The Court of
Appeals for the District of Columbia, which hears many of the
Environmental Protection Agency regulatory cases, is more
conservative. It ruled against the Clinton administration two-thirds
of the time over a seven-year period, according to a study by
Jonathan Adler, an assistant law professor at Case Western Reserve
University, published in May 2000.
Courts generally defer to federal agencies in
controversies over proposed rules, legal experts say. But when a new
administration tries to overturn the policy of its predecessor, it
must demonstrate that it is not being motivated by political
considerations.
"When the court smells something that
smacks more of a political decision than a decision really based on
the law and the record, then they may be more likely to want to
reverse it," said Richard G. Stoll, a Washington lawyer with
the firm of Foley & Lardner and former chairman of the American
Bar Association's environmental and energy section.
The Bush administration supported a series of
Supreme Court and Court of Appeals rulings early in 2001 that paved
the way for tough new standards for diesel engine emissions and
pollution from power plants, but it bridled at many of the rulings
that followed.
In December 2001, a federal judge in Montana
temporarily blocked a U.S. Forest Service plan to allow a huge sale
of trees charred by fire in Montana and Idaho after
environmentalists complained that the government was shortcutting an
appeal process and that the clearance would promote runoff that
could harm bull trout and other fish. Government officials reached a
settlement with environmentalists last February that significantly
scaled back the planned sale.
Then in May, Chief U.S. District Judge Charles
H. Haden II in West Virginia barred the U.S. Army Corps of Engineers
from issuing additional permits allowing coal companies to blast
off the tops of mountains to reach rich seams of coal and then
dump the rock and waste in valley streams below. Haden's
47-page ruling also rebuked the Bush administration for issuing
new rules removing a legal impediment to mining companies that Haden
called contrary to the Clean Water Act. The administration and
mining companies appealed the ruling.
Environmentalists scored their biggest victory
last month, when the 9th Circuit lifted a lower court's injunction
and reinstated the Clinton administration's rule designed to protect
58.5 million acres of national forests from logging and road
construction. Because the administration refused to defend the new
rule on appeal, environmental groups intervened in the case and were
granted legal standing by the appellate court.
The 9th Circuit ruled again this month, this
time upholding EPA rules requiring small cities, counties and
developers to protect waterways from stormwater pollution. Those
rules had been challenged by homebuilders, the paper industry and
municipalities and defended by environmentalists.
And now, environmental groups are expected to
support the efforts of nine northeastern and mid-Atlantic states
that have sued the administration over its decision to relax
"New Source Review" industrial air pollution standards.
A report prepared last year by Sen. Charles E.
Schumer (D-N.Y.) concluded that in nearly a dozen recent
environmental cases, the Department of Justice did not appeal
adverse court rulings, switched positions mid-case or agreed to an
"anti-environmental settlement" with industry plaintiffs.
"The reason for this is the administration does not feel bound
by the constraints of the laws in their agency actions," said
Greg Wetstone of the Natural Resources Defense Council.
A Justice Department spokesman declined to
comment on Schumer's report. But Rey said that government attorneys
are doing the best they can to keep up with the legal challenges.
"The numbers will probably show you that we defended more of
these rule makings that emanated from the Clinton administration
than the Clinton administration defended" from the
administration of former president George H.W. Bush, he said.