Compiled from numerous sources, mostly Earthjustice
According to their website:
Earthjustice was founded as the Sierra Club Legal Defense Fund in 1971. Since then, it has become the leading nonprofit environmental law firm in the country. In 1965, the Sierra Club launched a campaign to protect the spectacular Mineral King valley in the Sierra Nevada in California. The opponent was Walt Disney Productions, which intended to turn this secluded valley into one of the world’s largest, most elaborate ski resorts.
After a number of unsuccessful attempts to halt the project through the political system, the Board of Directors of the Sierra Club authorized the filing of its first lawsuit—directed at preventing the development of Mineral King—in 1969.
A San Francisco attorney working at a reduced rate took the case all the way to the Supreme Court, which heard the argument in 1971 and handed down the decision in 1972. The Sierra Club technically lost, but was allowed to return to the lower courts to try again. It did so; the project was again blocked pending completion of an environmental impact study.
By this time, Disney had grown tired of the notoriety the case had generated and pulled out of the project. The result of the litigation was the preservation of Mineral King and the confirmation of citizens’ rights to seek review of environmental disputes in courts of law.
In other words the Sierra Club used the legal system to harass the Disney Corporation into abandoning their project, even though the project had obtained all necessary legal permits and was approved by the local communities.
The Sierra Club found this strategy so effective, that in 1997, it formed Earthjustice to continue it. Donnell “Trip” Van Noppen, CEO of Earthjustice proudly states:
Our strength is the legal work that we do. We don’t claim to be the best at the science or the economics or at the grassroots organizing parts of the environmental movement. We rely on the groups that we work with for that. People who support us are the ones who really believe that the use of the courts is crucial. It’s been really proven true in the last few years that the courts are essential because we’ve had a Congress and a White House really wanting to go in quite an anti-environmental direction, and the courts have been the backstop.
Earthjustice, again according to their website, seeks to place severe restrictions on how U.S. land and waterways may be used. It also opposes most mining and logging initiatives, commercial fishing businesses, and both the practical and recreational use of motorized vehicles in undeveloped areas. “Environmental litigation,” says Earthjustice, “has been key to preserving threatened natural resources and protecting people’s environmental rights.”
The first question to ask is what exactly are our environmental rights? We have the right to life, liberty, and the pursuit of happiness. No mention of environment there, nor in the constitution for that matter. What if, in fact, Earthjustice’s campaign of preserving threatened natural resources interferes with my pursuit of happiness? Would they be violating my constitutional rights?
The second question to ask, is Earthjustice actually protecting people’s environmental rights, or using the courts to conduct legal shakedowns? Bruce Benson suggests the latter. In a column entitled Environmental Bounty-Hunting, How Earthjustice and other green groups abuse the legal system (Wall Street Journal online, 9 August, 2006), Benson states:
Most federal environmental statutes allow citizens to sue individuals or companies for violating the laws. Indeed, from 1993 to 2002, more than 75% of all environmental federal court decisions started as citizen suits, reports James May. Writing the Widener Law Review, he concludes that citizen suits are “the engine that propels the field of environmental law.”
But most of these suits are brought by environmental organizations, not individuals, and most of the filings don’t end in a court decision; they end in settlements. From 1995-2002, there were 4,438 notices of intent to sue under four environmental statutes–6.6 times more than actual federal court decisions in citizen suits. Presumably most of the others were settled.
Why the settlements?
My research indicates a clear and compelling reason: settlements bring in money environmental groups can use to pursue other goals. Although statistics are hard to come by, most citizen suits appear to be filed under the Clean Water Act and the Resource Conservation Recovery Act (RCRA). Provisions in these laws enable citizen prosecutors to craft settlements that compensate them generously for legal costs (amounts well above actual costs) and that channel funds into pet environmental projects (called “supplemental environmental projects.”)
Many of the violations are trivial and technical. Defendants who have not even minimally harmed the environment are roped in. One commentator points out that the Atlantic States Legal Foundation has frequently sued over paperwork violations under the Clean Water Act, but “not over violations of substantive environmental standards.” Companies settle simply to avoid expensive litigation.
An indication that self-interest, not environmental stewardship, propels these suits comes from comparing citizen suits filed under two different laws. Between 1995 and 2002, 1,371 citizen suits were filed under the under the Clean Water Act but only 143 under the Clean Air Act. Do environmental groups such as the Natural Resources Defense Council and the Earthjustice Legal Defense Fund think that water violations are more serious than air pollution? Probably not. They do know, however, that the Clean Water Act mandates record-keeping that makes suing under it easy and allows large fines that make settlements lucrative; the Clean Air Act does not.
Another sign that the goals are financial, not environmental, is that the Clean Water Act suits are disproportionately targeted at private firms, not municipal governments. Yet municipal governments generate much more water pollution.
Current statutes thus create a moral hazard, distorting the incentives of environmental groups. As Michael Greve wrote some years ago, “In purpose and effect, citizen suit provisions are an off-budget entitlement program for the environmental movement.” Repealing these provisions, particularly those in laws that authorize large monetary fines, would help some environmental groups refocus on activities that actually enhance environmental quality.
Earthjustice has two major campaigns, one focusing on responsible energy, the other focusing on judicial appointments. According to their website, Earthjustice’s “Judging the Environment” campaign seeks to derail conservative judicial appointments by Republican Presidents, on the theory that such appointees are insensitive to environmental protection issues. Note the presumption of “guilt”, Republican appointees are anti-environment, and therefore must be prevented from becoming judges. A chief target of “Judging the Environment” was William Myers, nominated by President Bush in 2004 to the 9th Circuit U.S. Court of Appeals.
Jacob Laksin, in his editorial “The Hate America, Hate-Roberts Left (FrontPageMagazine.com, July 27, 2005) views Earthjustices’ Judging the Environment campaign in much the same way:
Environmentalist groups have also come out of the woodwork to cast aspersions at John Roberts. Among the most vocal has been Earthjustice, the California-based environmentalist group that dependably mounts legal campaigns against government agencies and corporations that run afoul of its uncompromising stance on issues like the use of public land. Of Judge Roberts, the group cautions that he “may fail to uphold our key environmental safeguards” as a Supreme Court Justice. Although supported by little evidence—the claim rests on a single opinion Roberts wrote in a case involving the Endangered Species Act—it has already found its way into newspapers like The Boston Globe. Less well publicized is the group’s “Judging the Environment” campaign, an ongoing effort to block Republican judicial appointees. The mission: denounce nominees with ties to the Republican Party as enemies of the environment. The campaign has already felled its share of victims, the most recent being William Myers, an attorney in the Department of Interior. Myers’s 2004 nomination to the 9th Circuit U.S. Court of Appeals failed owing in no small part to the relentless efforts of Earthjustice, which, on irresponsibly thin evidence, decried Meyers as “the most anti-environmental nominee in history.”
In their focus on energy, Earthjustice’s “Responsible Energy” campaign litigates against efforts to extract oil, gas, and coal from U.S. public lands. What follows is a list of some of their other energy related lawsuits as described on their website.
Shell’s Air Permit in the Beaufort Sea:
For a second year in a row, Earthjustice is enforcing the Clean Air Act relating to Shell’s offshore oil exploration plan in Alaska’s Beaufort Sea.In 2007, we convinced the Environmental Appeals Board to remand the original permit back to Environmental Protection Agency.Unfortunately, the revised plan still violates the Act by treating separate drill sites as distinct sources of air pollution, even though all wells will be drilled by the same drill ship.
Earthjustice is appealing the revised permit on behalf of conservationists and an Alaskan Native organization.
Roan Plateau: Challenge to Oil and Gas Leasing Plan:
The Roan Plateau, just west of Rifle, Colorado, provides an island of near-unrivaled biodiversity in western Colorado.The Roan contains essential habitat for genetically pure populations of Colorado River cutthroat trout; supports Colorado’s greatest herds of elk and mule deer; and hosts a number of rare and sensitive plants. BLM itself acknowledges that the Roan also contains at least 19,000 acres of wilderness-quality lands.The area is extremely popular with sportsmen for backcountry angling, hunting and other recreation.
The BLM, however, plans to lease the Roan for oil and gas development, and to allow drilling more than 3,600 wells on the Upper Plateau.BLM admits that the backcountry and wilderness values for which the Roan is known would be seriously compromised by such intensive development.BLM’s leasing plan also disregards widespread opposition from the towns and counties in the area, as well as from Colorado’s governor and congressional delegation — all of whom sought to additional protections for the Roan.
Earthjustice represents a coalition of groups in challenging the BLM leasing plan.
Coalbed Methane Gas & Coal Mining Development in Flathead River Basin:
The Flathead River flows from British Columbia south into Montana and forms the western boundary of Glacier National Park. Coalbed methane gas extraction and open-pit coal mining in the Canadian headwaters of the Flathead Riverthreaten to fragment the Flathead’s abundant habitat for grizzly bears, wolves, and wolverines, and to pollute the river’s pristine waters.
Earthjustice has submitted petitions to the appropriate international agencies to seek to protect this special river and its surrounding habitat.
Arctic Ocean Seismic Surveys
Seismic surveys associated with offshore oil and gas development are among the loudest sources of noise in the world’s oceans and have been detected thousands of kilometers away from the sound source. Despite this, the National Marine Fisheries Service and Minerals Management Service have approved permits which authorize seismic surveys in the Beaufort and Chukchi Seas in 2008. The noises associated with these surveys can cause hearing loss in marine mammals, have been associated with whale strandings, and can disrupt marine mammals’ feeding and migration and impair their ability to detect predators.The agencies’ cursory environmental assessments fail to fully assess the effects of such noise on marine mammals including the endangered bowhead whale.In addition, NMFS issued a permit that violates the Marine Mammal Protection Act because it because allows a single seismic survey to harass tens of thousands of marine mammals and allows the survey to cause potentially serious injury to marine mammals.
Earthjustice is challenging these permits on behalf of conservation and Native Alaskan organizations.
Sale in the Chukchi Sea
Alaska’s Chukchi Sea provides vital habitat for polar bears, endangered bowhead whales, walrus, beluga whales, seals, fish and marine birds.Native Alaskan communities along the Chukchi Sea practice a subsistence way of life and have depended on the resources of this sea for their cultural and nutritional well-being for thousands of years. The U.S. Interior Department has decided to open nearly 30 million acres of this vitally important habitat in the Chukchi Sea for oil and gas leasing and possible development.
The environmental impact statement prepared by the Mineral Management Service (part of the Department of the Interior) in connection with the lease sale failed to properly evaluate the potential effect of exploration and drilling in this pristine area, and did not adequately analyze the combined effects of climate change and oil and gas activities on the wildlife that inhabits the sea and the communities that depend upon it.
Earthjustice filed suit on behalf of a coalition of Alaska Native organizations and conservation groups challenging the adequacy of the agency’s environmental impact analysis. Earthjustice will ask the court to void any leases issued pursuant to the sale if it determines that the environmental review was inadequate until the government conducts a more thorough environmental review.
HD Mountain Coal Bed Methane
A proposed natural gas drilling project near Durango, Colorado, will bulldoze roadless forest, worsen air pollution, threaten homes, and pollute wilderness areas and Mesa Verde National Park. The project proposes almost 200 new coalbed methane wells, including approximately 30 wells and 8 to 9 miles of new roads inside the currently undeveloped HD Mountains roadless areas. Despite this, the Forest Service and the Bureau of Land Managementhave approved the permits necessary for the project.
Earthjustice ischallengingthe project on behalf of conservation groups, homeowners,a rural county, and individuals whose livelihood would be negatively impacted by the drilling as proposed.
This list is but a few of the many court challenges ongoing under Earthjustice’s “Responsible Energy” campaign. There are two things that they all of these lawsuits have in common. The first is that they oppose almost every industrial activity that occurs outdoors, especially activities by the energy industry. The second is that their claims of environmental damage are generally spurious, usually based on bad science or no science. However, in courts today, bad science has the same credibility as good science (See Precedents for Big Oil from the Twilight Zone, The Correlator, Spring 2008)
Their use of the court system to interfere with projects that have obtained all necessary legal permits and permissions is, in my opinion, nothing more than extortion. But hey, it is extortion to protect my environmental rights – so it’s got to be good, right?
Next Issue will look at the: National Resources Defense Council