A Report of the Judicial Accountability Project
By: William Snape III John M. Carter II
Executive Summary
This empirical study details the Bush (II) administration’s treatment of the National Environmental Policy Act (NEPA), one of America’s most important and enduring environmental statutes. In this report, the Bush administration’s perceived hostility toward NEPA is analyzed by examining arguments the administration has made in federal litigation where NEPA violations have allegedly caused harm to the environment, by comparing those administration arguments with well accepted legal interpretations of those NEPA issues and by assessing the response of the federal judiciary to the Bush arguments.
During the first two years of the Bush administration, executive branch agencies have been active in the litigation of at least 172 decided court cases involving the application of NEPA.[1] In 94 of those cases, or roughly 54 percent of the time, the Bush administration has presented NEPA-hostile arguments that attempted to weaken the application of NEPA. Despite the fact that federal agency arguments under NEPA are usually given a high degree of deference by federal courts, the Bush administration has only won 21 of its NEPA-hostile arguments, which represents a significant 78 percent failure rate. By contrast, in the Bush administration’s 78 NEPA-consistent arguments that tended to uphold or promote NEPA, the Bush administration has won 75, a 96 percent success rate.[2] These statistics illustrate that the Bush administration is not only frequently making arguments hostile to NEPA in federal court, but is also frequently finding these arguments rejected by the federal judiciary. The data also indicate that the administration overwhelmingly wins when its arguments are NEPA-consistent.
In contrast to the first two years of the Bush administration, a comparatively fewer 105 NEPA cases were decided during the first two years of the Clinton administration. In these cases the Clinton administration had an overall win rate of 74 percent of its total NEPA arguments, as opposed to the 55 percent win rate of Bush administration overall NEPA arguments.
What makes the Bush administration’s NEPA-hostile arguments more troubling is the increasing necessity of citizen groups to turn to the federal court system in order to uphold important environmental laws. Conservationists faced with unresponsive agencies and a hostile legislative branch are left with little choice but to defend important environmental protections in court.[3] That NEPA essentially requires only accurate information and public participation in federal environmental decision-making merely amplifies the questions that should be asked of this administration’s environmental policy.
This report reveals a disturbing pattern by the Bush administration to target certain key environmental issues with NEPA-hostile arguments (e.g., exempting corporate timber interests from national forest protections, undermining federal road and highway environmental reviews and encouraging an increase in oil and gas drilling on public lands) in a determined effort to push environmentally damaging actions under deceiving slogans such as “the healthy forest initiative,” “streamlining transportation” or “making America energy-independent.” In reality, both NEPA and the resources the statute is designed to protect are losing, as Bush corporate supporters are rewarded by the Bush administration with environmental roll-backs.[4] Indeed, many of the administrative attempts to weaken environmental regulations by the Bush administration have mirrored the failing arguments made by the Bush administration in court.
For example, the Bush administration has used strategies described by federal judges as “bait and switch tactics” and “mystical legal prestidigitation,” in order to shortcut NEPA as it applies to our national forests. On the energy front, the Bush administration has made arguments that an administrative law judge warned would “eviscerate NEPA as it relates to pre-leasing environmental analysis.” In allowing development to encroach on the habitat of listed endangered species, the Bush administration has presented NEPA analysis that a federal court called “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” In its refusal to support the Clinton roadless rules, the Department of Agriculture went so far as to endorse an industry interpretation of NEPA that a federal court of appeals stated would allow NEPA to 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.” This report confirms that, across the board, the Bush administration is hard at work attempting to undo decades of environmental protections.
By fleshing these legal stories out and studying their empirical patterns, this report identifies three general trends regarding the Bush administration’s NEPA arguments before the federal judiciary. First, the Bush agencies have made many unfounded arguments in order to avoid NEPA review through a variety of legal mechanisms. These arguments have mostly failed. Second, Bush agencies have repeatedly attempted to shortcut the NEPA process at the Environmental Assessment (EA) phase by making unwarranted “Findings of No Significant Environmental Impacts” (FONSI) despite facts that indicate either significant impacts or significant scientific uncertainty, thus necessitating a full Environmental Impact Statement (EIS). Again, these arguments have mostly failed. Third, Bush agencies have sought to avoid meaningful and honest environmental review of federal action, including outright deception, the use of inaccurate or dated information and simply ignoring relevant impacts. These arguments by the Bush administration, too, have been rejected by the courts.
A potentially important side note is that although the overwhelming majority of the Bush administration’s NEPA-hostile arguments have been rejected by federal judges of all political persuasions, including Republican-appointed judges, there is some statistical evidence indicating that Republican-appointed judges have been more likely to accept NEPA-hostile arguments than Democrat-appointed judges. Given some of President Bush’s recent judicial nominees, many of whom have anti-environmental records, the composition of the federal courts could dramatically change in the coming years. In the cases reviewed for this project, Republican-appointed district court judges were nearly twice as likely to agree with NEPA-hostile arguments as were Democrat-appointed judges. At the Court of Appeals level particularly, the difference was striking. Where the composition of the three judge federal appellate panel was comprised of a majority of Republican-appointed judges, the success rate of NEPA-hostile arguments was 60 percent, as opposed to only 11 percent where Democrat-appointed judges constituted the majority of the panel.[5] The partisan voting tendencies documented in this report are consistent with the results of previous studies.
In sum, the Bush administration appears to be going to great lengths, including the presentation of arguments in federal court that are clearly not supported by law, to undercut NEPA and avoid informed environmental decision-making. This report documents the Bush administration’s undeniable assault on NEPA, a law with no substantive requirements that is intended only to ensure honest evaluation of the environmental impacts of federal actions with meaningful public and expert participation.
References
1 See Appendix A, Project Methodology, which explains both how the research was conducted and how the results were tabulated.
2 See generally Appendix B, Numerical Analysis of NEPA Case Database.
3 Eric Pianin, “For Environmentalists, Victories in the Courts,” The Washington Post, January 27, 2003; Jim Carlton, “White House Maneuvers Anger Environmentalists,” The Wall Street Journal, January 21, 2003; see also NRDC, “Rewriting the Rules, The Bush Administration’s Assault on the Environment,” Natural Resources Defense Council, April, 2002; Terry McCarthy, “How Bush Gets His Way on the Environment,” Time, January 27, 2003; Congressman Ed Markey, “Does Honesty Pay at the Bush EPA,” October 1, 2002, which details that the Bush EPA has initiated 40 to 50 percent fewer enforcement actions against polluting companies and recovered around 80 percent less in civil penalties than did the Clinton EPA over a comparable time frame; Environmental Integrity Project, “Paying Less to Pollute, The Decline of Environmental Enforcement at EPA Under the Bush Administration” (2002).
4 Margaret Kriz, “NEPA Hit by Broad Array of Attacks,” The Environmental Forum, Environmental Law Institute (Jan./Feb. 2003); OMB Watch Report “OMB Initiates Sweeping Review of Regulations,” www.ombwatch.org, December 23, 2002.
5 See generally Appendix C, Tracking the Judiciary. See also, “Hostile Environment: How Activist Judges Threaten Our Air, Water and Land,” NRDC et al., June 2001.
source: http://www.defenders.org/publications/nepareport.pdf 2may03
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