Ring the Environmental Alarms : Legislation Would Erode Citizens’ Ability to Defend Forests

The U.S. Senate, urged by Mark O. Hatfield (R-Ore.) and Brock Adams, (D-Wash.) has adopted an alarming piece of legislation. In a nutshell, the measure would repeal, for parts of the Pacific Northwest, the federal environmental laws that govern the use of lands belonging to the American people.

The mechanism for this is a rider attached by the sponsoring senators to the annual appropriations bill of the Interior Department that effectively exempts current timber sales from 13 national forests and other federal lands in the Northwest from every national law that protects the environment. The rider was passed without public hearing, without public testimony, without any consideration by the congressional committees that are supposed to watch over management of our national resources.

The wording of the rider makes it appear less significant than it really is, saying merely that courts may not issue injunctions against logging operations until there has been a full hearing on the objection before the court.

Thus, if interested citizens’ groups present evidence that a federal agency’s logging plans violate laws enacted to protect the environment, the court’s traditional authority to stop the violation pending a full hearing is removed. As a practical matter, the logging goes forward and later, when a full hearing is possible, it’s too late. The Hatfield-Adams rider is, plainly and simply, a license to violate the law.

Recent actions by three federal judges spurred the introduction of the Hatfield-Adams rider. In separate cases, all brought by citizen environmental groups, the judges ruled that sales of old-growth timber from much of the federal land in the Northwest appeared to be illegal. The cases dealt with logging in the last of the Northwest’s ancient forests--trees up to 1,000 years old.

Similar riders have passed before. In fact, since 1985, Hatfield has succeeded in getting six such measures through Congress, largely unnoticed by his colleagues. On Sept. 6, the U.S. 9th Circuit Court of Appeals ruled on an appropriations bill rider authored by Hatfield in 1987. A lower court found that the Bureau of Land Management had acted “arbitrarily and capriciously” in disregarding “new, significant and probably accurate” information concerning the potential extinction of the northern spotted owl on BLM lands, in violation of the National Environmental Policy Act. But the appeals court confirmed that, under the 1987 Hatfield rider, timber sales may not be challenged with claims of new information about environmental impact, depriving citizens of another piece of their right to ask the courts to enforce the law.

This year’s Interior Department appropriations bill, with the Hatfield-Adams rider, is about to go before a House-Senate conference committee. The measure must be seen by the conferees for what it is--a dangerous infringement on the right of citizens to bring before the courts violations of laws by government agencies. A large measure of the enforcement of our environmental laws has come through suits by citizens and citizen groups. Continued restrictions on judicial review could bar citizens from challenging failure to enforce any number of laws--those that protect our air, our water or our food, for example.

With the disaster of Prince William Sound fresh in mind, we may find a useful lesson in the battle fought some years ago over the trans-Alaska pipeline. The pipeline, from Prudhoe Bay on the North Slope to the port of Valdez on Prince William Sound, was challenged in court in the 1970s. Conservationists attempted, among other things, to get the Interior Department to prepare an unbiased environmental impact statement that carefully assessed the risks of transporting North Slope oil by sea through Prince William Sound. The conservation organizations wanted such risks compared to the alternative of using an all-land pipeline route through Canada.

Pushed by the industry, which greatly preferred a pipeline to Valdez and then transshipment of the oil by tanker, Congress exempted the project from the National Environmental Policy Act and prohibited the courts from reviewing it under any law. Thus, by a single stroke, Congress took citizens and the courts out of the pipeline decision, leaving it entirely in the hands of federal agencies.

No one can say whether the legal review urged by the conservationists would have resulted in the pipeline being built through Canada. However, had it been built overland, as conservationists preferred, Prince William Sound would not have suffered the disaster that occurred March 24.

The Alaska pipeline decision illustrates the risks to the environment when Congress is persuaded to exempt a particular project--or an entire region--from environmental laws that apply everywhere else. When Congress short-circuits the orderly judicial process for testing the soundness of potentially harmful acts, as the ancient-forest rider would do, the nation may lose more in the long run than is gained in the short term. If logging what little is left of the old-growth timber on public lands in the Pacific Northwest cannot withstand application by impartial judges of the National Forest Management Act, the National Environmental Policy Act, the Clean Water Act and other environmental statutes, one wonders what sorts of activities Congress is being asked to put beyond the reach of the law.