As the November elections draw near, many environmental activist groups are actively misrepresenting President George W. Bush’s environmental policy record and focusing their attacks on issues affecting key electoral-vote battlegrounds in the West.
Most recently, anti-Bush environmentalists disseminated an erroneous reinterpretation of a Supreme Court ruling in a high-profile wetlands case and a mischaracterization of the Bush administration’s treatment of the Clinton-era “roadless rule,” which a federal court declared to be in violation of federal statutes.
President Urged to Defy Court
In an August 12 report titled “Reckless Abandon: How the Bush Administration Is Exposing America’s Waters to Harm,” the Natural Resources Defense Council (NRDC), Sierra Club, and other groups claimed the Bush administration’s wetlands policy will open for private development tens of millions of acres of currently protected wetlands.
The report’s authors do not indicate how they calculated the loss of “tens of millions of acres,” but they nevertheless urge the Bush administration to ignore the U.S. Supreme Court’s 2001 ruling in Solid Waste Association of Northern Cook County v. Army Corps of Engineers (SWANCC) when implementing wetlands policy.
The Court’s SWANCC decision clearly stated that the Army Corps of Engineers may not use the Migratory Bird Rule, a provision of the Endangered Species Act, as a basis for claiming jurisdiction over wetlands. The August 12 report criticized Bush for implementing policies consistent with that ruling.
The August 12 report also criticized the Bush administration for not asserting jurisdiction over wetlands under Clean Water Act Section 404. The report’s criticisms rely greatly on a wide expansion of the meaning of “navigable” as opposed to “isolated” waters.
In the opening pages of the report, the NRDC and Sierra Club criticize the Bush administration for ordering “staff not to assert CWA jurisdiction over … ‘isolated’ waters on the basis that the waters are used as a habitat for federally protected endangered species.” The report clearly alludes here to the Migratory Bird Rule, which the Supreme Court unambiguously stated may not be used as a basis for asserting federal wetlands authority.
The report goes on to criticize the administration for centralizing wetlands decision-making within the Army Corps of Engineers’ headquarters in Washington. Before the Bush administration’s attempts to streamline wetlands designations, such decisions were made on an ad hoc basis by different departments, spawning extensive litigation and mass confusion among landowners, environmental groups, and state and local regulators.
What the authors of the report may have wished to characterize as a giveaway to industry and agriculture is in fact an attempt to establish a clear standard under which all wetlands stakeholders may make rational and predictable land-use decisions.
Bush Record Defended
The Council of Republicans for Environmental Advocacy (CREA) roundly criticized the NRDC report in an August 12 story on PRNewswire.
“The [NRDC] report focuses on 15 jurisdictional wetlands decisions made by the Army Corps of Engineers without disclosing to the American public that the Corps makes roughly 100,000 jurisdictional decisions each year. Apparently, these organizations agreed with approximately 99,985 wetlands decisions made by the Corps–a whopping 99.99 percent,” said the PRNewswire story.
“If politics weren’t the real basis for this report, these groups would have disclosed the 99,985 Corps decisions that environmental organizations agree with instead of focusing on a mere 15 issues,” said CREA President Italia Federici.
“The report creates the impression that President Bush is trying to eliminate the Army Corps of Engineers regulatory program,” the PRNewswire story noted. “In reality, President Bush increased the budget for this program by more than 7 percent in FY ’05, bringing the funding from $140 million to $150 million.”
“The Sierra Club and the NRDC want people to believe that the President is cutting a program when in reality President Bush increased this regulatory program’s budget by $10 million for 2005. These groups are absolutely misleading the American public. They do not want to disclose all of the relevant information because the full, complete picture would portray President Bush and his Administration in a favorable light,” said Federici.
Courts Rule Clinton Roadless Rule Illegal
In addition to their complaints about wetlands designations, environmental groups are criticizing the Bush administration for its treatment of the roadless rule promulgated during the waning days of the Clinton administration, in January 2001. That rule, established by the Secretary of Agriculture through the U.S. Forest Service, banned logging, among other activities, on more than 50 million acres of forest land, primarily in the Northwest.
The roadless rule’s apparent inconsistency with federal statutes such as the Wilderness Act and National Environmental Policy Act spawned nine separate lawsuits in federal trial courts in Alaska, Idaho, North Dakota, Utah, Wyoming, and the District of Columbia. In response to one of those lawsuits, on May 10, 2001, the federal court in Idaho issued a preliminary injunction banning implementation of the rule. The U.S. Court of Appeals for the Ninth Circuit later reversed the injunction, effectively reinstating the rule.
In the U.S. District Court for the District of Wyoming, however, a federal judge declared the rule illegal on the grounds that the Wilderness Act requires roadless designations to follow “clear and unambiguous” processes, which the rule clearly had not done. To end the confusion and litigation, the Bush administration has proposed to rescind the rule altogether, through a proposed rulemaking process in which comments will be received through November 15, 2004.
If the Bush administration had not issued its proposal for a rulemaking, the likely result would have been regulation through the court system–and the creation of a nationwide patchwork of rules as diverse as the court system itself.
Gary Baise ([email protected]) and Bryan Brendle are attorneys with the Washington, DC-based law firm of Baise and Miller PC specializing in legislative and regulatory affairs focusing on energy, environment, and agricultural issues.
For more information …
The U.S. Supreme Court’s 2001 ruling in Solid Waste Association of Northern Cook County v. Army Corps of Engineers is available online at http://supct.law.cornell.edu/supct/html/99-1178.ZS.html. It is also is available through PolicyBot. Point your Web browser to http://www.heartland.org, click on the PolicyBot icon, and search for document #14110.
More information on the Bush administration’s proposed rulemaking on roadless areas is available online at http://roadless.fs.fed.us/.