The Justice Department, under the leadership of Attorney General
John Ashcroft, has recently employed unprecedented and flimsy
legal arguments designed to stifle dissent to the Bush administration
environmental rollbacks. These efforts have an Orwellian quality
to them that would be amusing if the harm to the environment
involved in the cases was not so serious. Two examples illustrate
In a case called Center for Biological Diversity v. Pirie,
environmentalists sought to halt the killing and maiming of
migratory birds on the Pacific island of Farallon de Medinilla
during live-fire training exercises conducted by the military
in violation of the Migratory Bird Treaty Act.
In Pirie, an industry-funded litigation group called Washington
Legal Foundation attempted to file an intemperate brief challenging
the environmentalists' ability or "standing" to
bring the suit. This brief made a number of outrageous arguments
including the assertion that the environmentalists actually
benefited by the Defense Department's bird kill because "bird
watchers get more enjoyment spotting a rare bird than they
do spotting a common one."
Federal District Judge Emmet Sullivan refused to permit the
filing of this brief. This should have ended the matter, but
the Justice Department took the extraordinary step of filing
a supplemental brief, far after the deadline for filing such
briefs, that incorporated the WLF brief in its entirety.
Judge Sullivan easily rejected this challenge to the environmentalists'
standing and he severely chastised the Justice Department
for signing onto what Judge Sullivan denounced as WLF's "frivolous"
standing argument. In the Court's words:
"there is absolutely no support in the law for the view
that environmentalists should get enjoyment out of the destruction
of natural resources because that destruction makes the remaining
resources more scarce and therefore valuable. The Court hopes
that the federal government will refrain from making or adopting
such frivolous arguments in the future."
In the wake of such a strong court rebuke, one might expect
the administration to chastise the attorneys making this frivolous
argument and begin complying with the law. Not this administration.
Rather, the administration supported a "rider" on
a Defense Department appropriations bill that exempted the
Department from compliance with the MTBA. Now they have nominated
William Haynes, the General Counsel to the Department of Defense,
who lists Pirie as the second most important legal
case he has handled in his legal career, to a lifetime appointment
to the federal appellate bench.
The Justice Department is making an even more sweeping argument
against environmental standing in a case pending right now
before the Court of Appeals for the Tenth Circuit. The case
is a challenge to the Roadless Area Conservation Policy, better
known as the "Roadless Rule." The Roadless Rule
is a Forest Service initiative enacted at the end of the Clinton
administration that protects 58 million acres of public forest
land from new roadbuilding activities. It was hailed when
released as one of the greatest public lands conservation
measures of the 20th Century.
Of course, the Bush administration does not see it this way.
The administration appears to believe that the Roadless Rule
inappropriately limits resource extraction on federal lands.
But the Bush administration hasn't repealed the Roadless Rule,
at least not yet. Repealing the Roadless Rule would impose
a real political cost because opinion polls indicate that
the public overwhelmingly supports the Rule.
Rather, the administration has taken a series of measures
to kill the Roadless Rule in court. First the Justice Department
refused to defend the Rule against a challenge brought in
federal court in Idaho. After this court issued a ruling preventing
the Rule from taking effect, the administration refused to
appeal. It was only because environmental organizations "intervened"
in this case in the lower court, and appealed this ruling,
that the Ninth Circuit Court of Appeals was able to reverse
this ruling and allow the Rule to go into effect.
The environmentalists' success in the Idaho case appears
to have convinced the Justice Department that abdication alone
is not enough.
In July, Wyoming District Judge Clarence Brimmer issued a
startling and sweeping ruling that prevented enforcement of
the Roadless Rule nationwide and declared that the Forest
Service can only prevent new roads from being built in national
forests by acting through the Wilderness Act, with the explicit
approval of Congress. (Judge Brimmer issued this ruling despite
holding about half his financial assets in stock and royalty
interests in oil and gas. These industries hailed his ruling.).
The Justice Department again decided not to appeal. Environmentalists,
who had been permitted to "intervene" by the trial
court, appealed this adverse ruling to the Tenth Circuit Court
Under established precedent, the environmental interveners
have "standing" to appeal the adverse ruling. But
in a brief filed on behalf of the plaintiffs that are attacking
the Roadless Rule, the Justice Department is now challenging
this precedent. No prior Justice Department appears to have
taken this extraordinary position on intervener standing.
Not only is this Justice Department refusing to defend rules
and regulations validly issued by its predecessor administration,
it now seeks to prevent anyone from coming to the aid of important
environmental measures. Employing flimsy legal arguments,
the Justice Department is seeking to silence environmental