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FOR IMMEDIATE RELEASE: December 11, 2003
CONTACT: Doug Kendall, 202-296-6889

CLOSING THE COURT HOUSE DOORS:
THE ASHCROFT DOJ'S ATTACK ON ENVIRONMENTAL STANDING

 


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 this problem.

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 of Appeals.

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 dissent.

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