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Defending the Wild

Earthjustice Program Report: Public Lands and Wildlife
September 2020
Demonstrators hold banners outside White House to rally against the Dakota Access oil pipeline.
Leslie Peterson / CC BY-NC 2.0
Demonstrators hold their banners outside of the White House in 2017 to rally against the construction of the Dakota Access oil pipeline.

Earthjustice is grateful for your generous support of our work defending public lands, waters, and wildlife. Earthjustice and our partners are not letting up in the fight to safeguard our natural heritage from an administration that is bent on sacrificing it in the name of corporate gain. And together, we are winning: This past year we have blocked harmful pipelines, mining, and drilling projects; stopped old-growth logging; and defended keystone species and bedrock environmental laws. We could not do this work without you and are pleased to share some recent highlights.

Preserving Our Public Lands

Shutting down the Dakota Access pipeline. In an unprecedented victory for the Standing Rock Sioux Tribe, a federal judge revoked the U.S. Army Corps of Engineers’ flawed permits for the Dakota Access pipeline. The court ordered the government to conduct a full-scale analysis of the environmental impacts of the pipeline, a process that typically takes a year or more. Until the new environmental impact statement is complete, the Dakota Access pipeline is operating illegally. Earthjustice is currently battling the Corps and the pipeline company in the district court and the D.C. Circuit Court of Appeals in an effort to force the pipeline to shut down entirely until the environmental review is completed.

Badger–Two Medicine protected from oil and gas leasing. In June 2020, the D.C. Circuit Court of Appeals finally vacated a lower court’s decision to revive an oil and gas lease on 6,000 acres in the Badger–Two Medicine region in Montana, restoring an Obama administration decision that canceled the lease. The Blackfeet people have fought for decades to protect the Badger–Two Medicine roadless area adjoining the Blackfeet Reservation. For hundreds of years, this region adjacent to Glacier National Park has provided strength, subsistence, and cultural identity for members of the Blackfeet Nation. It continues to be sacred land used by many Blackfeet people for traditional spiritual activities and ceremonies. This was the only remaining oil and gas lease of a set of 47 leases handed out in this region in the 1980s for $1 an acre. Earthjustice represented tribal and conservation groups who challenged the lease reinstatement.

Protecting sacred lands from mining. Earthjustice won a major victory in July 2019 when a federal court blocked construction of a mile-wide, half-mile-deep open-pit copper mine in Arizona’s Santa Rita mountains that would have obliterated thousands of years of Native American cultural heritage. As well as devastating lands sacred to our clients, the Tohono O’odham Nation, the Pascua Yaqui Tribe, and the Hopi Tribe, the Rosemont mine would have permanently depleted groundwater resources in the region and destroyed thousands of acres of endangered jaguar habitat. Importantly, this case made new law that limits how mine operators can utilize adjacent public lands for toxic mine waste and tailings. We are now defending this victory on appeal. Earthjustice also filed two new challenges to protect Montana’s Smith River from the proposed Black Butte Copper Mine and continues to fight proposed mines that would harm waterways, wildlife, and Indigenous cultures and livelihoods in Alaska, Minnesota, and Michigan.

Blocking oil and gas drilling on public lands. In May 2020, Earthjustice won two rulings protecting a vast swath of federal public lands in the interior West from oil and gas drilling. First, a Montana federal court vacated 287 oil and gas leases on more than 145,000 acres in Montana. The court found, among other things, that the Bureau of Land Management (BLM) did not adequately analyze how these leases would impact groundwater, and that it had, in some instances, failed to provide any analysis at all. Second, the same court struck down a BLM policy that attempts to circumvent sage-grouse protections on millions of acres, thereby opening them up for leasing. In addition to the particular leases set aside by the court, the ruling impacts millions of acres of sage-grouse habitat where BLM has sold (or is proposing to sell) leases.

Reinstating the federal coal moratorium. In partnership with the Northern Cheyenne Tribe, we secured a judgment in federal court that it was illegal for the Trump administration to lift the federal coal leasing moratorium and reopen millions of acres of public lands to coal leasing without any assessment of how this will impact the environment. Following this significant ruling, the court stopped short of reinstating the moratorium and instead ruled that we would have to file new legal claims to challenge the adequacy of a newly issued environmental assessment from the BLM. Accordingly, in July 2020, we launched a new legal effort to reinstate the moratorium on coal leasing on these federal public lands. The coal sector is one of the biggest polluters of land, air, and water in the country, and the federal coal program alone accounts for more than 10% of total U.S. greenhouse gas emissions.

Protecting ancient trees in the Tongass National Forest. The 17-million-acre Tongass National Forest is ancestral land for many Indigenous peoples, as well as a carbon sink critical to combating climate change on a global scale. The old-growth forest of the Tongass is critical for many wildlife species, the people whose way of life centers on the salmon and wildlife of the forest, and the many people from around the country and the world who value this rare forest. In June 2020, Earthjustice won a final judgment in our challenge to a massive logging project on Prince of Wales Island in the Tongass that would have been the largest timber sale on any national forest in 30 years. A federal judge ruled that the U.S. Forest Service had violated environmental laws, including the National Environmental Policy Act, when it approved the sale, and the Forest Service must now conduct a new environmental review. We represent local and national conservation groups in this litigation and are working closely with a broader coalition including the Women’s Earth and Climate Action Network, Alaska Native tribes and leaders, and local community and conservation groups to protect the old-growth forest of the Tongass.

Dappled light shines through between old growth trees in the Tongass National Forest.
Carlos Rojas / Getty Images
Earthjustice’s court win saved thousands of acres of old-growth trees in Alaska’s Tongass National Forest from logging.

Protecting the Arctic from oil and gas drilling. In August, Earthjustice filed two major lawsuits in federal court to protect the Arctic from oil and gas drilling. The first challenges an unlawful plan to open 1.6 million acres of coastal plain in the Arctic National Wildlife Refuge to oil and gas drilling. The Refuge is of inestimable cultural and ecological significance and — thanks to decades of tireless advocacy by Earthjustice and many others — has yet to be subject to oil and gas exploration. The plain is sacred to the Indigenous Gwich’in people, and is a centerpiece of sustaining their way of life. It serves as the calving grounds for the Porcupine caribou herd, which is not only a vital source of food, but also a mainstay of Gwich’in traditions. The plan to drill not only violates the rights of Indigenous people, but also ignores the science of climate change in a region whose rate of global warming is already twice what it is anywhere in the world.

Earthjustice filed a second lawsuit challenging an administration plan to reverse protections established by President Obama in the Western Arctic. This plan rolls back prohibitions against drilling on nearly 7 million acres of this ecosystem vital to the survival of birds, caribou, polar bears, and other species. In addition to this fight, Earthjustice is currently in court on several lawsuits targeting further attempts to expand oil and gas leasing and exploration in the Western Arctic. In various parts of this work, Earthjustice represents the Native Village of Nuiqsut tribal government and multiple conservation groups. This rush to destroy an irreplaceable landscape for the sake of the oil and gas industry comes amid an unprecedented oil market downturn, fueled by a supply glut created by the pandemic, and at a time when the country should be ending oil and gas drilling on public lands to protect our climate. Working with a broad coalition of allies, we will not rest until the Arctic is protected.

Protecting Our Wildlife

Grizzly bear protections upheld. Earthjustice is thrilled to report that in July 2020 the 9th Circuit Court of Appeals upheld our federal district court win for the Northern Cheyenne Tribe and environmental groups, restoring Endangered Species Act protections to grizzly bears in the Greater Yellowstone region and blocking Wyoming and Idaho’s plans to conduct trophy hunts for the bears. The oral arguments were available for live streaming, and a recording can be viewed online on the 9th Circuit YouTube channel.

United States Court of Appeals for the Ninth Circuit
18-36030 Crow Indian Tribe v. USA

Protecting imperiled Florida panthers. Only an estimated 120 to 230 adult Florida panthers remain on Earth, and nearly 85% of panther deaths are on roadways. In January 2020, Earthjustice filed a federal lawsuit to challenge road-widening projects that would endanger these big cats, which have been on the federal endangered species list since 1967 but remain on the brink of extinction. Earthjustice is representing the Sierra Club and the Environmental Confederation of Southwest Florida in this pivotal legal case against the Florida Department of Transportation, the U.S. Fish and Wildlife Service, and the U.S. Army Corps of Engineers.

A Florida panther in the crotch of a tree.
Frans Lanting / National Geographic
Earthjustice is litigating to protect endangered Florida panthers.

Safeguarding wolves. Gray wolves remain functionally extinct across much of their historic range, and the government estimates that today only 6,000 gray wolves survive in nine states, excluding Alaska. The gray wolf was persecuted to the brink of extinction in the early 1900s, and although the government reintroduced wolves in the Northern Rockies in 1995, efforts to exterminate them continue. In March 2020, after four years of litigation, the 9th Circuit affirmed key rulings that we secured from an Idaho judge to prevent the U.S. Forest Service from again illegally authorizing operations as part of the state of Idaho’s plans for exterminating 60% of the wolf population to provide more elk for hunters and commercial outfitters in the Frank Church–River of No Return Wilderness.

Defending Bedrock Environmental Laws

The administration is working at a furious pace to dismantle environmental regulations and gut bedrock laws, and it is using the fear and tumult of the coronavirus pandemic as cover for further regulatory rollbacks and industry handouts. Earthjustice and our partners are fighting back, using legal, policy, legislative, and communications strategies.

The people’s environmental law. The National Environmental Policy Act (NEPA) provides a crucial legal avenue for communities to make their voices heard when a project is proposed that could threaten their health and safety, such as a toxic waste incinerator to be built in their neighborhood or an oil and gas pipeline that would run near their drinking water supply. NEPA also ensures that federal decisionmakers investigate all harmful impacts of their decisions, including cumulative impacts, as well as considering possible alternative solutions. NEPA guarantees that people who may be affected by a project have the right to be notified and informed, to comment, to have the government explain its rationale, and, if necessary, to go to federal court to challenge an adverse or irrational decision, before the project breaks ground.

However, the current administration has sought to eviscerate NEPA with a sweeping new rule that cuts off public participation and undermines the law’s purpose and intent. The rule narrows the scope of projects requiring review, allows project sponsors to write their own reviews, limits the consideration of environmental justice impacts, and undercuts full consideration of climate change impacts. This rule is meant to fast-track major oil, gas, and coal projects, and would allow infrastructure to be built without adequate consideration of impacts on low-income communities of color, and the effect the project would have on rising seas, increased flooding, and severe weather. Representing a broad coalition of environmental justice, outdoor recreation, and conservation groups, Earthjustice filed a lawsuit challenging the new rule in August 2020, and we continue to pursue an aggressive legislative and communications campaign to build our case for protecting NEPA on Capitol Hill and in the court of public opinion.

Endangered Species Act. Congress passed the Endangered Species Act (ESA) to protect and ultimately recover imperiled plants and animals, as well as the habitat and ecosystems on which they depend. Unable to change the law, the current administration has been rolling back key regulatory provisions of the ESA, and Earthjustice has been fighting on legal and legislative fronts. The administration’s latest move is to propose a new definition of “habitat” that will make it harder to designate and protect the areas that imperiled species need to survive and recover. The rule would narrow the definition of habitat to exclude lands and waters in need of any restoration or modification, precisely those areas where we must be improving conditions to prevent extinction. Earthjustice will file public comments in opposition to the proposal in September. Meanwhile, our 2019 legal challenge to the administration’s first round of rollbacks — dubbed the extinction rule — continues. In this case, Earthjustice represents an extraordinary coalition of partners dedicated to protecting this vital law: Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Natural Resources Defense Council, National Parks Conservation Association, WildEarth Guardians, and the Humane Society of the United States. We are also working closely with a group of 19 states that have also challenged the rollbacks.

The Clean Water Act. The administration is pursuing three lines of attack to undermine this 50-year-old law intended to protect our nation’s waters — and Earthjustice is fighting back and winning. In April 2020 we won a stunning victory when the U.S. Supreme Court rejected an attempt by the administration and industries to open up a loophole in the act that would give polluters free rein to use groundwater as a sewer to convey pollutants to rivers, lakes, and oceans. Earthjustice is also defending the act against the administration’s “Dirty Water Rule,” which would dramatically reduce the waterways and waterbodies protected by the Clean Water Act — removing protections from nearly one in every five streams, more than half of all wetlands, and many lakes, ponds, and other waters. It will be particularly disastrous for arid ecosystems across the country — leaving, for example, the vast majority of Arizona’s and New Mexico’s waterways unprotected from pollution and degradation. We are representing six tribes from across the West and Midwest, as well as labor and conservation groups, in this case. Finally, we are challenging the administration for its third attack. On September 2020, we filed a lawsuit to challenge the administration’s revision to regulations that would severely undermine state and tribal authority to block construction of projects — such as gas pipelines and coal export terminals — that harm waters within their borders. Section 401 of the Clean Water Act gives states and tribes the power to block such harmful federal projects and we are fighting to defend their authority to protect clean water. Earthjustice is more than prepared to meet the administration at every turn, and we won’t rest until our environmental laws are safe.

Environmental laws exist to protect our irreplaceable wildlife and wild places, but these laws mean little if they are not upheld.

Earthjustice enforces laws to ensure that species and wild ecosystems can freely exist and adapt to a changing world. It’s an ongoing, evolving effort, and we’re here for the long haul. Learn more

Thank You

Thank you for standing with us as we defend the rule of law and fight for justice for our communities and our planet. The intersecting crises of climate change, public health, environmental racism, and ecological sustainability demand that we step up and take bold, decisive action that leaves no community behind — and with your support, we continue to do so. We extend our deepest gratitude and heartfelt well-wishes for your health and safety.

By Ann Marie Rubin
Originally published in the Earthjustice Insider, September 2020