Wednesday, July 09, 2008

EPA v. the Forest Service, and the Ninth Circuit killing legal realism

The always-interesting-and-on-the-wrong-side Jonathan Adler has several posts about the recent Ninth Circuit Lands Council v. McNair case, where courts have pulled in somewhat the extent they will scrutinize Forest Service logging decisions, and the broader implications are unclear.

In Lands Council, an environmental group sued over a logging project in Idaho, lost at the district court level, but appealed and won at the appellate court in a 2-1 vote. The Forest Service was granted an en banc rehearing by 11 judges and won by an embarrassing 11-0 vote. The case is here. My knowledge of judges is getting rusty, but looking at the panel I seem some bad names but at least one good one. So what happened?

The case theoretically revolves around how much work the Forest Service has to do to prove it's not harming the environment (or maybe even help the environment, but that issue doesn't have broader implications). This new decision now says the Forest Service is the expert on this matter, not the judges, and therefore overrules prior court precedent on studies that would be needed. Enviros now need to do more work to prove the government is doing something wrong, rather than simply show the government didn't do its homework.

The key quote is this: "we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable." Of course, the government will now dismiss all evidence presented by project opponents by trotting out the project manager to say his expert opinion is that the contrary evidence is unreliable. How easily the courts will accept cursory rebuttals is the real open question of this case.

But here's the thing: I've dealt with logging proposals off and on during my legal career, virtually all of them claiming to be net beneficiaries to the environment, yet we environmentalists continue to oppose these claims. Where is the outrage at the hypocrisy of environmentalists stopping all the environmental benefits proposed by government? Maybe the court opinions would hide the outrage, but somebody should express that outrage and I don't see it.

This is a binary situation where either the government is trying to help the environment but is being stopped by alleged environmentalists, or the government is full of it. I think the lack of outrage indicates the latter. The Lands Council case involved a project where 95% of the treated land had logging, and only 5% skipped "harvesting."

What the Ninth Circuit had done in previous cases was push the Forest Service to justify its decisions, which I think is an expression of legal realism about the Forest Service and its failure to do its job. The contrast I'd make is with the EPA, which despite tremendous pressure from the White House actually made some legitimate findings about climate change.

Too bad the Ninth Circuit is moving in the wrong direction - hopefully it won't keep going that way.

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