Planet Earth News: Endangered Species Act, New Chief Justice and National Forests

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Tom Turner shares the latest planet earth news that affects the environment and its overall well-being.

Planet Earth News

Monkeying With Endangered Species

The Endangered Species Act is the most important law in the
world if you happen to be a condor, say, or a Florida

The statute protects rare animals, birds, and
plants–from hunters, in some cases, but more often
from developers who would so alter habitat that it can no
longer support the species. For that reason, it’s also very
controversial: Every time the law comes up for renewal,
it’s opposed by powerful interests who don’t want some
little fish or flower to stand in the way of a new mine,
highway, dam, or string of condos.

Their principal weapon is ridicule. A few years ago, the
star of the drama was a tiny fish known as the snail
darter. Its rarity delayed the construction of the Tellico
Dam on the Little Tennessee River–a dam that should
never have been built, snail darter or no snail darter. But
the fish got the blame. Before that, a flower called the
furbish lousewort held up the building of a dam in Maine.

This year, Senator Lloyd Bentsen is picking on the Concho
water snake, which, if officially “listed” by the Fish and
Wildlife Service, could hinder the building of the Stacey
Dam and Reservoir in the senator’s home state of Texas.
Construction of the dam and reservoir would probably lead
to the snake’s extinction, because the rest of its habitat
has already been ruined by dams and reservoirs.
Nonetheless, Senator Bentsen is holding renewal of the
Endangered Species Act hostage at the behest of those
pushing for the Stacey project.

Justice Rehnquist and the Land

Much has been made of the civil-rights record of William
Rehnquist, the new chief justice of the United States, but
his environmental record hasn’t been examined in much
detail. To those who dream of a Supreme Court sensitive to
environmental concerns, the prospects aren’t pretty.

I recently interviewed 18 leading environmental lawyers and
legal scholars around the country for a long piece on
environmental law. Among the questions I asked was, “Which
legal decision has been most damaging–most difficult
to live with in the practice of environmental law?”

The most common answer was, “Vermont Yankee.” The author of
that opinion was the Honorable Justice William Rehnquist.

The impact of Vermont Yankee is hard to overstate. At the
time–the mid ’70s–the courts were busy
interpreting the National Environmental Policy Act of 1970.
NEPA requires federal agencies to study the environmental
effects of a proposed project and to examine alternatives
to it.

In the early ’70s, the Vermont Yankee Power Company wanted
permission to build two big nuclear reactors to supply
electricity to its customers. The Natural Resources Defense
Council filed suit, claiming that Vermont Yankee had
submitted insufficient documentation to the Nuclear
Regulatory Commission to support its license request: The
documents failed to examine the environmental effects of
the entire fuel cycle (uranium mining, fuel fabrication,
plant operation, and waste disposal), and they didn’t
consider energy conservation as a possible alternative to
building the plants in the first place.

The court of appeals agreed, ruling that the Nuclear
Regulatory Commission must examine the fuel cycle and
investigate energy conservation as an alternative. It
implied, as well, that the NRC should choose conservation
if it proved to be superior.

This was an expansive reading of NEPA, and, had it stood
the test of the high court, the practice of environmental
law would be much different today.

But it wasn’t to be. The Court, led by our new chief
justice, slapped down the court of appeals, ruling that it
had overstepped itself considerably. Agencies, the Court
said, have no power to do more than the absolute minimum
Congress spelled out in NEPA. They must investigate
alternatives, but they are under no obligation to choose
one over another, despite its benefits. In consequence,
NEPA is a procedural statute only–useful for delaying
and improving projects but powerless to stop bad projects
altogether or to force agencies to make the most
environmentally benign choice.

Later, in a famous death penalty case with important
environmental implications, Justice Rehnquist wrote that in
most cases an agency can’t be sued successfully for not
doing something it has the power to do under its rules and
regulations. This hamstrings outsiders from forcing
recalcitrant agencies to do their jobs as well as possible.

So here we have a chief justice who has ruled again and
again that agency decisions shall stand–an odd
position for a judge appointed by a president who has been
rather scornful of the federal bureaucracy in his day.

Forest Service: “Build More Roads!”

The Forest Service announced its long-range plans for our
national forests in September, and environmentalists let
out a cry of shock. The Service intends to double the
amount of timber cut annually and to build an incredible
580,000 miles of new roads by 2030. By comparison, 343,000
miles of roads now crisscross the national forests. (The
entire interstate highway system comprises just 40,000
miles!) Environmentalists tried to apply Gramm-Rudman to
the Forest Service’s road-building budget in Congress but
were outmaneuvered by western senators.

World Resources 1986

Finally, we alert you to an extraordinary encyclopedia of
information on the international environment. It’s the
first in what is projected to be an annual series of such
reports, and it’s packed with charts, graphs, and numbers,
numbers, numbers. There are essays on such topics as world
population, human settlements, food and agriculture,
forests and rangelands, wildlife and habitat. But the heart
of the report is its data, which make it an enormously
useful tool for research and understanding. (World
Resources 1986,
by World Resources Institute and
International Institute for Environment and Development,
edited by Donald Hinrichsen, Basic Books, 1986, $16.95.)

Tom Turner, a writer and editor who’s worked in the
environmental field for 17 years, is with the Sierra Club
Legal Defense Fund, an independent environmental law firm
that represents many organizations across the country. It
is supported principally by private donations. For more
information, write Sierra Club Legal Defense Fund, San Francisco, CA.