April 16th, 2007

Environmental rulings lean against Bush?

THE ASSOCIATED PRESS
Jeff Barnard
April 14, 2007

GRANTS PASS, Ore. (AP) - A string of federal court rulings in recent weeks has gone against Bush administration environmental policies, and critics say they are proof that the White House regularly circumvents laws designed to protect the nation's air, water, forests and endangered species.

"They (courts) are finding in case after case after case that the Bush administration is violating the law," said Trip Van Noppen, vice president of litigation for Earthjustice, a public interest law firm that represents environmental groups suing the government.
Not so, say administration officials, who are claiming their own share of court victories and say they prefer negotiation to litigation.

Topping the list of administration setbacks was the U.S. Supreme Court ruling on April 2 telling the U.S. Environmental Protection Agency it could not opt out of enforcing carbon dioxide emissions - a major component of the greenhouse gases blamed for global warming - under the Clean Air Act.

Here are other court rulings against Bush administration environmental policies in recent weeks:

* The 9th U.S. Circuit Court of Appeals rejected the administration's 2004 plan for balancing endangered salmon runs against federally owned hydroelectric dams in the Columbia Basin. The ruling characterized NOAA Fisheries' plan as a "sleight of hand" that counted dead fish as if they were alive.

The court added that the plan ignored a provision of the Endangered Species Act that requires the agency to consider whether salmon can be expected to thrive, not just survive, under dam operations.

* A federal judge in San Francisco tossed out new Bush administration rules that gave states a chance to seek logging and other commercial projects in roadless areas of national forests previously off-limits to most development.


* On the same day, a U.S. judge in Seattle ruled that the Bush administration illegally suppressed and misrepresented the views of dissenting scientists when it eased logging restrictions designed to protect salmon under the Northwest Forest Plan.

* Other rulings have struck down mountaintop coal mining in West Virginia, efforts to avoid listing new threatened and endangered species, and EPA emissions standards for brick and ceramics kilns.

'Bad salmon plans'
In what some are calling a major milestone, the Supreme Court told federal officials - and by extension the states - that the Clean Air Act gave them the power to control carbon emissions. The Bush EPA had maintained it had no authority under the Clean Air Act to regulate carbon dioxide.

Kieran Suckling, policy director for the Center for Biological Diversity in Tucson, Ariz., said that case and others demonstrated that the administration has gone from trying to "tweak" environmental laws to ignoring them altogether.

"It's really an imperial administration that fundamentally believes that whoever is in power gets to make all the rules," Suckling said.

But James Connaughton, head of the White House Council on Environmental Quality, dismissed the Supreme Court ruling as "somewhat moot," because President Bush is already committed to regulatory changes increasing automobile fuel efficiency and renewable fuels to cut carbon dioxide emissions.

"There is an example of a decision that appears negative on the face but is relatively inconsequential in that the president is already committed to regulatory action," Connaughton said.

He noted that the Supreme Court upheld the administration's position when it ruled that Duke Energy had to follow EPA directives to install pollution control equipment on aging cola-fired power plants.

"We negotiated a clean air rule (in 2004) with the environmental groups and the industry to virtually eliminate sulfur diesel fuel," he said. "Because we got everyone to agree, there was no lawsuit."

In the salmon case, which involves dams along the Columbia River and its tributary the Snake, Bush administration officials were stung by the 9th Circuit Court ruling.

"I can strongly affirm that it is the policy of this Administration to uphold the law faithfully," Bob Lohn, the northwest regional administrator of NOAA Fisheries, wrote in an e-mail.

"But, when the underlying issues are difficult or contentious, there is often great debate about what the law means or how it should be applied."

Indian tribes, among those involved in court-ordered negotiations with the administration on making the dams safe for salmon, said time was running out for endangered fish.

"At some point, some level of accountability needs to be interjected," said Charles Hudson, spokesman for the Columbia River Intertribal Fish Commission.
"What we dread most is the revolving door of bad salmon plans and litigation."

History of lawsuits
Van Noppen of Earthjustice attributes the breadth of environmental issues before the courts to the extent to which the Bush administration has staffed federal agencies with political appointees who share a desire to reduce regulation.

With Democrats now in control of Congress, he said, the administration has little chance of changing laws, rather than the way they are enforced, to reduce environmental regulation.

The administration faces administrative as well as judicial rebukes. The federal Inspector General recently found that Julie MacDonald, the deputy assistant Interior secretary for fish, wildlife, and parks, should face punishment for leaking information about endangered species decisions to industry groups.

Administration officials are fighting back. The Bush administration has filed notice it is appealing a ruling out of U.S. District Court in San Francisco that struck down its rewrite of rules on logging in roadless areas. The ruling reinstated the Clinton administration's version of the rules, which prohibit most logging and development in roadless areas.

Bush administration officials also say the courts have ruled against previous administrations that favored more federal intervention in environmental protection.

Interior Department spokesman Hugh Vickery said the agency has been getting sued over endangered species petitions since long before the Bush administration took over in 2001, and has focused efforts on getting species off the endangered species list, rather than putting more on.

Mark Rey, the Interior undersecretary of Agriculture in charge of the U.S.
Forest Service, noted that a federal judge in Wyoming also struck down the Clinton administration's roadless rule, and the state of Wyoming is seeking reinstatement of that court order.

"In the forestry area, we came in with a couple basic principals," Rey said.
"One, we would seek bipartisan solutions to the problems that confront us.
Two, respect the role of Congress in developing public lands policy. Three, work with and through our career civil servants. Four, keep an open mind.

"I don't think we have changed any of that in the six years we've been at it."