Three Cases Speak Volumes about New EPA Choice

Governor Leavitt consistent in favoring secrecy and anti environment positions


Jim Angell, Earthjustice, 303-996-9621
John McManus, Earthjustice, 510-550-6707

Utah Governor Mike Leavitt, a Republican who has actively worked to undermine federal environmental protections, has been tapped by President Bush as the next administrator of the Environmental Protection Agency, the agency responsible for enforcing many federal environmental laws.

Earthjustice has had close dealings with the Leavitt administration in a number of legal cases, three of which are examined below. These experiences speak volumes about the new EPA administrator nominee’s environmental record. Two of the cases show Leavitt’s clear preference for secrecy and keeping the public out of decisions relating to the environment. This despite the governor’s lip service to the idea of using “balanced, open and inclusive approaches at the ground level” to solve conflicts over environmental issues.

“Governor Leavitt’s appointment to head the EPA puts an anti-environmental politician in charge of regulating industries that pollute the nation’s air and water,” said Earthjustice Denver attorney Jim Angell. “We know from his history on environmental issues in Utah that his preferred method is to exclude the broader public from the process when he wants to make decisions that could harm the environment.”

Leavitt’s Secret Deal to Kill Future Wilderness Protection on Millions of Acres of America’s Public Lands

In the first case, Leavitt excluded the public when he struck a secret deal with the Bush administration to open six million acres of wild public lands in Utah to mining, clearcutting, and bulldozing. The state of Utah and the Bush administration agreed to resurrect a moribund lawsuit that already had been largely rejected by the Tenth Circuit Court of Appeals and then promptly settled it. In the settlement, the federal government agreed to Governor Leavitt’s demand that the Bureau of Land Management remove interim wilderness protections for wild, unroaded federal lands, thus opening them to oil and gas development. In May Earthjustice appealed this settlement, which affects not only Utah, but the nearly 200 million acres of public land managed by the BLM across the country.

Federally designated wilderness areas are off limits to oil and gas development, road building, logging, mining, and off-road vehicle use. Congress designates such wilderness areas, usually after the BLM or Forest Service brings them to its attention. The sweetheart settlement between the Bush and Leavitt administrations wiped out the process whereby the BLM identifies which lands deserve wilderness protections.

The settlement also removed interim wilderness study area protections for areas identified by the BLM as deserving wilderness protection while they await permanent protection as congressionally designated wilderness areas. The Bush/Leavitt settlement removes all such interim protections applied since 1991 on hundreds of thousands of acres nationwide, thus opening them to industrial development.

Denver Earthjustice attorneys Jim Angell and Ted Zukoski have filed an appeal of the Leavitt/Bush wilderness protections settlement.

“In the wilderness case, Governor Leavitt cut the public out of the process while gutting federal environmental law behind closed doors,” said Angell. “This is hardly the attitude we should be looking for in an EPA head.”

Leavitt’s Secret Deal to Pave National Monuments and Open Space

In the second case, the Leavitt administration threatened to sue the federal government in an attempt to make it possible for Utah to bulldoze highways over tens of thousands of miles cow paths and hiking trails through national parks, wildlife refuges, national monuments and wilderness areas. To make this claim, Governor Leavitt relied on a civil war era mining law, repealed in 1976, that gave states the right to lay claim to public lands, not otherwise reserved, for the use of highway building. This case, therefore, is a prime example of the Governor using obscure legal tactics to undermine the protection of the public’s lands.

Before a suit was even filed, the federal government submitted to the state’s legal threat and entered into secret negotiations to settle the issue. Earthjustice was forced to sue the Interior Department to bring the substance of these discussions to the light of day where ordinary citizens could learn what public lands were being negotiated away. Leavitt refused to make public any information on his plans to construct highways over public lands. The secret negotiations resulted in Utah and the Bush administration agreeing to make it easier for Utah to propose highways where none now exist through the Grand Staircase Escalante National Monument and wild lands adjacent to Zion National Park. Earthjustice attorney Ted Zukoski is working to reverse the deal on the grounds Congress explicitly barred the administration from giving away public lands in this fashion. View some images of places likely to get bulldozed and paved.

“Mike Leavitt is no friend of the environment, national parks, or open space,” said Zukoski. “In Utah, Governor Leavitt has been consistent in moving to pave, drill, pump, bulldoze, log, and drain many of America’s most pristine and awe-inspiring natural lands through secret, back-room deals. His idea of open, inclusive government is one that is open to polluters and doesn’t include the public.”

Leavitt Claims Trails as Constructed Highways to Thwart Wilderness Protection

In the third case, citizen groups sued the federal government to enforce off-road vehicle use restrictions on Utah’s wilderness quality lands. The Leavitt administration intervened in the case and argued that neither the court nor the federal government could limit off-road vehicle use in many of these wild areas because the state believed that it had rights-of-way in the areas that could only be regulated by the state citing the same civil war era law described above.

In addition to invoking the ancient highway law, the state tried to preserve the environmentally destructive status quo by joining in the Bush administration’s argument that the public has no right to ask the courts to force BLM to protect wilderness quality lands from unregulated off-road vehicle use. The Tenth Circuit Court of Appeals soundly rejected these arguments. In a remarkable move, the federal government has asked the US Supreme Court to reverse the Tenth Circuit’s decision and deny citizens the right to bring enforcement actions when the government fails to carry out land protections required by law. If the Supreme Court takes the case, Earthjustice will continue its defense of citizen enforcement actions and the protection of these interim wilderness areas from destruction by off road vehicles.

“Governor Leavitt has consistently acted to open Utah’s most spectacular wild public lands to development, especially oil and gas,” said Angell. “He’s also consistently acted on behalf of offroad vehicle interests which have degraded thousands of square miles of Utah’s once pristine wild lands. Finally, he’s consistently acted to degrade Utah’s environment out of the public eye with a heavy emphasis on secret dealings that exclude public participation.”


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