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Environmental Laws that Bite Back

Bill Neukom is a seasoned attorney in a prominent Seattle firm. He served as Microsoft's general counsel and for the past year has been the President of the American Bar Association. His main project at the ABA is engaging leading lawyers, judges, politicians, and others around the world to promote the rule of law. He leads the World Justice Project and has developed the Rule of Law Index, measuring the strength of legal protections and the degree of corruption in the world's legal systems. Strengthening environmental law is one of the goals of this effort.

So Neukom's observations about the how environmental laws are faring here in the US carry particular weight. In a recent press conference, he talked about the failure of the Congress and the executive branch agencies to make sure that our environmental laws are enforced and are updated to address new problems and developing science. The critical task of putting teeth in our environmental laws, seeing that they are carried out to protect the public's health, wild places and wildlife, has instead fallen to public interest litigators. Because our political leadership has abdicated its job, Earthjustice and our allies have taken on the job as the front line of defense for environmental protection.

What's behind Neukom's observation is the fact that our laws are not self-executing. Congress can adopt the best Clean Air Act or Endangered Species Act imaginable, but without political will, budget appropriations, and staff resources devoted to implementing them, the laws have no effect, like a speed limit on a highway where everyone knows there are no state troopers.

The need for Earthjustice to enforce the environmental laws has never been greater. The current administration has not only failed to enforce the law—it has aggressively undermined the law by rewriting the rules to create loopholes and eliminate basic protections that Congress intended. We are proud of our record over the last seven and a half years in persuading the courts to overturn these rollbacks, from power plant mercury emissions to national forest roadless area protections.

But the story continues. Even as Neukom was speaking, the administration released its latest rollback: a proposal to gut the workings of the Endangered Species Act. One of the most important features of how the ESA works is that federal agencies proposing activities that may harm imperiled wildlife—activities like building a dam or permitting a mine—must be reviewed by expert biologists from the Fish and Wildlife Service and the National Marine Fisheries Service in a "consultation" process to evaluate the impacts and craft protections to avoid wiping out endangered species. The ESA brings an independent scientific eye to the issue, ensuring that the agency with the dam-building or mining mission avoids pursuing actions that could lead to extinction of treasured species.

The administration's proposal would yank the teeth from this consultation process, just like taking the troopers off of the highway. It tried this once before. Four years ago, the Environmental Protection Agency tried to eliminate the expert wildlife agencies from pesticide regulation decisions. Under this scheme, EPA would no longer ask the expert fish and wildlife agencies for their scientific assessment of whether toxic pesticides could wipe out endangered salmon or turtles or birds. At the same time, EPA gave the chemical companies special rights to "consult" with EPA on its pesticide regulation decisions.

Earthjustice sued to stop this outrage and won. The expert agencies were brought back into the equation. In fact, this month the government's top fisheries agency released its findings that three widely used pesticides are not only harming dozens of endangered salmon populations, but will jeopardize their survival. We are suing to have two of these pesticides taken off of the market because EPA has failed to do its job to protect salmon and people from these poisons. We will also challenge the latest proposal to gut the ESA's consultation requirement if it is finalized in the closing months of the Bush administration.

But even if we win that case, and even after a new administration takes office, the truth that Bill Neukom articulated will persist: the agencies charged with enforcing our environmental laws will often lack the budget, staff, or political will to fully enforce our environmental laws. The need for the dedicated expertise of Earthjustice's attorneys will continue in the next administration if our environmental protections are to have any teeth.