Attorneys Allege Bush Fails as an Environmental Defender

SAN FRANCISCO, California, January 8, 2002 (ENS) - In the first year of George W. Bush's presidency, environmental protections have taken a back seat to industry concerns, according to attorneys who represent environmental groups in court. "Under this administration the courts have become the forum of choice for rolling back environmental protections," Earthjustice Executive Director Buck Parker said today.

Bush

President George W. Bush (Photo courtesy the White House)
Earthjustice is a non-profit public interest law firm based in San Francisco with offices across the United States. Its attorneys work to protect natural resources and wildlife and to defend the right of all people to a healthy environment.

Since the Bush administration took office, Parker told a media briefing today, "a disturbing pattern has developed in which industry sues to overturn environmental regulations and the Justice Department, led by Attorney General John Ashcroft, puts up only the feeblest of defenses and refuses to appeal adverse decisions."

Attorneys from across the country told reporters that Bush administration officials have been keeping the American public out of environmental decision making by holding closed door meetings with some industries, allowing other industries to rewrite environmental rules, and refusing to produce documents requested under the Freedom of Information Act.

BITTERNESS OVER THE BITTERROOT FOREST

A perfect example of a Bush administration official sidelining the public process was reversed in a Montana federal court late yesterday. Federal District Judge Donald Molloy in Missoula issued an injunction that halts nearly 41,000 acres of proposed logging in the Bitterroot National Forest. The ruling was based on concerns that the Forest Service illegally shut the public out of its decision making process for the controversial timber sales.

Conservation groups filed suit in December after U.S. Department of Agriculture Under Secretary Mark Rey announced his decision to approve the massive sale and exempt the project from administrative appeal. On behalf of The Wilderness Society, American Wildlands, and Pacific Rivers Council, Earthjustice lawyers asked Judge Molloy to stop the Forest Service from allowing logging to go forward until it honors the public's legal right to pursue an administrative appeal of the Bitterroot project decision.

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Fire in the Bitterroot National Forest in July 2000 (Photo courtesy U.S. Forest Service)
The judge granted a temporary restraining order against logging in December and yesterday wrote, "It is presumptuous to believe that the agency's final decision has a perfection about it that would not be illuminated by interested comment, questioning, or requests for justification of propositions asserted in it. Congress wanted the opportunity for full democratic participation in Forest Service decisionmaking when it created a statutory right to an administrative appeal. Neither the Secretary of Agriculture, the Undersecretary of Agriculture, nor the Forest Service can take away a right the Congress granted or a process Congress demanded."

Forest Service Chief Dale Bosworth defends Rey's decision not to hear public comment on this issue. On December 27, 2001, he said, "Under Secretary Mark Rey's examination of the Sierra Nevada Forest Plan Amendment and decision not to conduct a discretionary review validates the hard work of so many Forest Service employees and numerous interested individuals who have invested so much effort."

The forest service chief says the public would still be involved in the Bitterroot timber sale without an administrative appeal. "I am confident that under Regional Forester Jack Blackwell's leadership, he will formulate an aggressive plan to implement my decision that continues to engage local individuals and communities to protect and restore the health of the land," Bosworth said.

Each of the nine Earthjustice attorneys who briefed the media today reported different circumstances in which public participation in environmental decision making is being circumvented by Bush administration officials.

Denver attorney Eric Huber says Earthjustice has filed a lawsuit to force disclosure of information about closed door negotiations between the federal government and the state of Utah concerning the state's claim to more than 10,000 roads and trails crossing federal lands. The lawsuit, filed in the federal district court in Washington, DC, alleges that the Department of Interior is violating the Freedom of Information Act by refusing to release documents pertaining to the negotiations.

The roads and trails cross national parks, national monuments, national forests, wilderness areas, and other federal lands, including Utah's most pristine and environmentally sensitive areas. Recognition of the state's claims by the federal government would relinquish federal authority over these roads and trails.

ROADLESS, BUT MAYBE NOT FOREVER

The Bush administration's non-existent defense of the Clinton era roadless protection is of concern to environmentalists and Earthjustice attorneys, particularly Abigail Dillen in Bozeman, Montana.

In one of the single largest conservation measures enacted in the last 100 years, the Clinton administration protected 58.5 million acres of wild national forest lands with a ban on building roads in currently roadless areas. On Inauguration Day, the Bush administration froze action on this rule. But, says Earthjustice, in the face of broad public support for the roadless policy, the administration has been reluctant to openly reverse or undo it.

In March, the Bush administration failed to mount a defense of the roadless rule in a legal challenge to it brought by the state of Idaho and Boise Cascade Timber Company. Federal Judge Edward Lodge stopped the rule from being implemented. The government failed to appeal and instead initiated a new rule-making process to weaken the roadless policy - or eliminate it altogether.

Nine separate lawsuits have been filed to challenge the rule, including suits by timber industry associations, off-road vehicle groups, livestock companies and states eager for revenue from development on federal land. The Bush administration has failed to fight off any of them, Dillen said.

In a critical Ninth Circuit Court of Appeals hearing in October 2001, Earthjustice attorneys presented arguments in defense of the roadless rule. The Bush administration's attorneys were not in the courtroom, a fact noted by all three judges on the panel hearing the case. While the case works its way through the courts, the administration is removing roadless protections through directives coming from the office of the Forest Service Chief who has reserved to himself and his staff decisions about logging on public lands.

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The Tongass National Forest in Alaska (Photo courtesy Southeast Alaska Conservation Council)
The loss of protection for roadless public lands will hit Alaska's Tongass National Forest especially hard, Earthjustice attorney Eric Jorgensen said from his office in Juneau.

America's largest national forest and one of its richest ecologically, the Tongass National Forest, at 17 million acres, has about 2.5 million acres of roadless forests open to logging if the Bush administration weakens or abandons the roadless rule. Within these 2.5 million acres the Forest Service is currently planning many timber sales.

Jorgensen says the first timber sale is likely to be on Gravina Island near Ketchikan where the Forest Service plans to log roughly 37 million board feet of timber and build about 22 miles of new roads on the island.

A second Bush administration rollback affecting the Tongass occurred when the Bush administration decided not to defend against a timber industry lawsuit aimed at opening more of the Tongass to logging. Unlike the roadless rule, this lawsuit challenged the management plan each national forest is required to develop and implement. Hanging in the balance is half a million acres of old growth forest in roadless areas protected during the Clinton administration.

OUT IN THE BLUE PACIFIC

Far from the western forests, protection for another vast ecosystem is being undermined by the Bush administration, according to Paul Achitoff, managing attorney for Earthjustice Mid-Pacific. From his Honolulu office, Achitoff said, the Bush administration is opposing Clinton era protection for the 1,200 mile long Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, "the second largest marine protected area on earth after the Great Barrier Reef."

These reefs and islands are the foundation of a largely untouched ecosystem that is inhabited by over 7,000 marine species, half of which are unique to the Hawaiian islands including the endangered Hawaiian monk seal and the threatened green sea turtle.

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White terns in flight over Laysan Island, Hawaiian Archipelago, Pacific Ocean (Photo courtesy NOAA)
After more than dozen public hearings in Washington, DC and Hawaii, and 9,000 written comments expressing public support, President Bill Clinton established the reserve by executive order on December 4, 2000 and confirmed it by another executive order on January 18, 2001 during his final week in office.

The 1,200 mile long reserve was to be managed by the National Oceanic and Atmospheric Administration with input by stakeholders including native Hawaiians, with the object of eventually turning it into a marine sanctuary. But, Achitoff says, the Bush administration under pressure from the fishing industry to gut the protections, and administration has announced it will review the reserve's protected status.

In February 2001, shortly after President Bush took office, the Western Pacific Regional Fisheries Management Council, which represents commercial fishing and other extractive interests began to lobby the administration to review Clinton's executive order and put the reserve on hold. Achitoff says the council wants to designate the scope of any reserve that would be allowed to exist and to manage it to allow all the fishing and coral harvest and other commercial uses the council had in mind.

The council prepared their own competing plan to manage the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve so as to facilitate commercial exploitation.

Achitoff says, "The administration promptly complied, and through [Commerce Secretary] Donald Evans placed the executive order under review, and ever since has kept the coral reef reserve in limbo. It's failed to do anything to support it and has failed to do the Department of Commerce's duties under the executive order to put the reserve into operation. It's failed to develop a reserve operations plan to manage the resources for the objective of conservation, it has discouraged the reserve council that had been appointed to help manage the reserve from meeting."

"Essentially what we have is a stealth rollback by pocket veto," Achitoff said. "The administration has tried to stop the reserve from ever being established, and we fully expect the administration to now try to strip the reserve of its protections against overfishing, threats to endangered species, coral harvesting, fish collecting and other industry that will benefit a few at the expense of everyone else."

Internationally, says Earthjustice attorney Martin Wagner, the Environmental Oversight Commission of the North American Free Trade Agreement (NAFTA) has been weakened by Bush administration.

The Commission for Environmental Cooperation (CEC) of North America is a group of the top environmental officials from the U.S., Canada and Mexico set up under the NAFTA environmental side agreement to ensure that each government is effectively enforcing environmental laws.

"The Commission is valuable for creating a forum for citizen groups to raise concerns about ineffective enforcement of environmental laws," Earthjustice says. "When the citizen submission mechanism was proposed, it was intended to be a mechanism to guarantee independent review of such claims, and the previous U.S. administration was a fairly strong supporter of such a process. The new administration has reversed course, demonstrating its intent to subject the complaint process to the control of the very governments whose conduct is being reviewed."

Similar patterns of Bush administration inaction and obstruction of environmental protections was detailed by Earthjustice attorneys in relation to coho salmon in Oregon, water allocation for the restoration of the Florida Everglades, critical habitat for Steller sea lions in Alaska, Yellowstone grizzly bears, and industrial pollution of America's air and waterways.

The pattern is the same in all these cases says Earthjustice - the Bush administration publicly proclaims support for an environmental regulation while privately working to weaken it under the cloak of litigation.