Court Records Show Bush Administration Systematically Violating Environmental Laws
"This empirical study establishes clear, objective evidence of what environmentalists have been saying for two years, " said Rodger Schlickeisen, president of Defenders of Wildlife. "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. In spite of the fact that the study team took pains to give the administration the benefit of the doubt on questionable cases, they still found that in only two years it has argued in court to weaken NEPA nearly 100 times. Given the legal deference given to federal agencies in court, it is truly incredible that the Bush administration has lost more than three-fourths of its ‘NEPA-hostile' court arguments. One shudders to think of the number of times they must have broken the law without being caught and taken to court by some citizen group."
Although the study was originally intended to examine only the cases, and not the makeup of the courts, the findings suggest that the background or ideology of certain judges influences whether environmental laws are upheld or weakened.
"The study shows significant differences in the outcome of NEPA cases decided by judges appointed in Republican Administrations," said Karin Sheldon, professor of law and director of the Environmental Law Center at Vermont Law School. "The opinions in these cases show a pattern of anti-environmental decision making that has already had severe consequences for efforts to protect land, air, water, wildlife, and other natural resources. Future judicial appointments by the Bush Administration seem likely to make the situation worse. The long-term impact of an actively anti- environmental judiciary is potentially incalculable."
This is the first report of the Judicial Accountability Project by Defenders of Wildlife, with the assistance of the Vermont Law School Environmental Law Clinic, which is examining all federal environmental court cases decided since George W. Bush became president. This first report deals with NEPA because that law involves all of the federal agencies whose activities have environmental impacts, and it thus provides an across-the-government look at the Bush administration's environmental policies.
Victor Sher, a California attorney and former president of EarthJustice Legal Defense Fund who has taught and lectured on environmental law, commented that "NEPA is widely considered the Magna Carta of the nation's environmental laws. Enacted more than three decades ago with the support of then-President Richard Nixon, it states the most fundamental environmental responsibility of the federal government: to inform citizens and federal agencies of the likely impacts of actions on the environment and give the public a chance to comment on those actions before it's too late."
"It is disheartening to see the evidence presented in Defenders' report clearly suggesting that the current administration is working hard -- across the full spectrum of issues governed by NEPA -- to avoid and even to undermine this critical law," Sher continued.
The study found a distinct link between agency attempts to circumvent NEPA and the administration's main corporate supporters. The U.S. Forest Service, for example, has gone to extreme lengths to avoid environmental review of timber sales and other actions that benefit the timber industry. In Friends of Clearwater v. McAllister, the Forest Service issued an Environmental Assessment and "finding of no significant environmental impact" for a proposed timber sale (3 million board feet from 3,340 acres), but then solicited timber industry bids for a much different sale with massive environmental impacts (9.5 million board feet from 800 acres). The court found that the Service's actions throughout the process had been intentionally misleading and noted "[t]he bait-and-switch tactic the Forest Service employed defeats the purpose and intent of NEPA to allow the public opportunity to participate in the decision-making process."
In a different case on the Clinton Roadless Rule, Kootenai Tribe of Idaho v. Veneman, the court found that the Bush Administration had cynically surrendered the rule on the basis of NEPA challenges by the timber industry, which noted the "environmental harm" that would supposedly result from the lack of road building in unroaded forests. The Ninth Circuit Court of Appeals dismissed this reasoning out of hand, noting "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."
"People sometimes ask why the environmental community is so active in the courts," Schlickeisen said. "This report points to the obvious reason: we have in this presidential administration the worst environmental lawbreakers we've ever seen. 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. Of course, this White House is also working overtime to eliminate those provisions of the law that allow the public to challenge them in court. This is an administration that apparently will stop at nothing to weaken environmental protection to benefit their supporters in industry."
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Defenders of Wildlife is a leading nonprofit conservation organization recognized as one of the nation's most progressive advocates for wildlife and its habitat. With more than 430,000 members and supporters, Defenders of Wildlife is an effective leader on environmental issues. For timely information on environmental issues, visit www.defenders.org and subscribe to DENLines, a free e-mail alert newsletter.
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