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The Planet
Not above the Law

Environmental Law Program takes on Cheney while expanding its scope and capacity

by Li Miao

Sanjay Narayan
Sanjay Narayan
On July 10, the Sierra Club's Environmental Law Program (ELP) successfully thwarted Vice President Dick Cheney's effort to keep the public in the dark about the energy industry's influence on the Bush administration's 2001 Energy Plan.

After a lower court ruled that the White House must produce records detailing its meetings with energy executives and lobbyists, Cheney appealed the matter to the D.C. Circuit Court. He lost. According to Sierra Club attorney Sanjay Narayan, the decision demonstrates that the administration is "not above the law."

Though the Club must still fight this case in the U.S. District Court, and contend with the possible assertion of "executive privilege" by the Cheney team, it marks a satisfying success for the expanding law program.

Now able to draw on a staff of ten attorneys, the law program is shining an unwelcome spotlight on administration maneuvers to gut air and water protections, leave communities at risk from toxic waste sites and other pollution, allow massive industrial-scale feedlots to pollute the water and air, open our most treasured wild places to logging and mining, and allow global warming to continue unchecked. The law program is also litigating to challenge sprawl and uphold environmental justice.

Despite the law program's expansion, there are many potential lawsuits and not enough lawyers, so the Club tries to bring similar suits in mutiple states. For example, the Club has filed more than a dozen lawsuits challenging industrial-scale feedlots in Michigan, Wisconsin, Kentucky, Oklahoma, Iowa, and California. These multi-state campaigns necessarily involve substantial collaboration with local activists, national campaign leaders, and other organizations.

"Instead of knights on white horses riding in at the end of the day, we work at the front end with communities to lend legal capability to their campaigns," says Pat Gallagher, director of the Environmental Law Program. "We think of ourselves as Ôlawyer-organizers' who look beyond the courthouse doors at how our suits can help communities and provide strategic, on-the-ground environmental protection."

The law program's expansion has allowed the Club to provide legal support and collaboration on key regional issues, like challenging Pacific Lumber's plan to log the forests surrounding California's Headwaters Forest. According to Deputy Legal Director Alex Levinson, "For the first time, we have the capacity to assist strategically with lawsuits handled by outside counsel but which involve critical priorities for the Club."

Other regional actions include a suit to stop an Illinois ethanol factory from polluting the Illinois River, a suit in Idaho to stop logging in roadless areas of the Lolo National Forest, and a challenge to a development in New Jersey that would discharge large quantities of warm water into the Pequannock River.

The suit that Club lawyers have filed against Cheney seeks to compel full disclosure from the White House about what happened behind closed doors when a parade of energy CEOs from Enron and other extractive industries helped craft the administration's energy policy. The Cheney task force released its plan in May 2001, calling for a host of dig-and-drill actions favorable to the fossil fuel industry.

Last October, District Court Judge Emmet Sullivan ordered the White House to disclose "unprivileged" documents to the Sierra Club. Rather than comply, the administration made an emergency appeal to the D.C. Court of Appeals, where one of the judges initially remarked to the Cheney team, "You have no case." The judge also stated that the administration was ignoring the law by asking the appeals court for intervention.

Narayan clarifies the issue of access to the documents. "If Vice President Cheney wants to invite Ken Lay and every other energy CEO in America into his office to write the national energy policy, the law allows him to do so, but only if he does so in the light of day. That way the rest of us who are uninvited aren't left out of our democracy."

The administration may yet try to hide behind "executive privilege" or slip through another legal loophole. Narayan says that executive privilege is an ill-defined concept that does not appear in the Constitution and is generally considered to apply only under narrow circumstances, such as cases concerning national security. Hiding behind it, he says, could backfire by causing a public outcry.

In the Headwaters case, the Sierra Club and its co-plaintiff, the Environmental Protection Information Center (EPIC), ran into a Perry- Mason-like surprise after filing suit. The Headwaters controversy was ostensibly settled in 1999, when the federal and state governments paid $480 million to purchase the 7,500-acre Headwaters forest and two smaller groves.

In return, the Pacific Lumber Company was required to develop a plan for responsible logging on its remaining 211,000 acres. But Pacific Lumber has been steadily logging for the past four years – from 1999 through 2003 – without ever submitting the required conservation plan. The logging was authorized under permits issued by the state of California.

"The California Department of Forestry never enforced the law," says Berkeley attorney Sharon Duggan, who has worked on the case for years on behalf of the environmental groups. Club lawyers helped Duggan recently by assisting with legal responses and research at a crucial point in the case.

In May, Duggan took the Headwaters case to trial in Eureka, California, where a state judge ruled against Pacific Lumber and the California forestry agencies. "It's unfortunate that it took a lawsuit by EPIC and the Sierra Club to protect these redwood forests," says Gallagher. "The logging company once again demonstrated a pattern of caring more about its bottom line than protecting the forests and wildlife and surrounding communities, and the state cop on the beat was nowhere to be seen."

"This is very complicated litigation, and the law program lawyers pitched in to help us when it was most needed," says local activist Kathy Bailey, who until last year served for a decade as the forest conservation chair for Sierra Club California. Bailey also notes, "Almost every single person who got involved in protecting these forests did so because something happened in our backyards that got our attention."

"The public got the Headwaters," says Duggan, "but in exchange, a private company received half a billion dollars and a license to log old-growth redwoods."

Law program staff attorney Aaron Isherwood notes how harmful Pacific Lumber's practices have been for local communities. "The company's logging pace is unsustainable and in short time, once the trees are gone, will undermine the local economy. Community businesses that rely on tourism, fishing, and hiking strongly support protection of these forests."

"We bring cases on behalf of the Sierra Club that protect communities at risk of being left behind," says Pat Gallagher, "They are suffering from environmental problems that typically have readily-available solutions – and our suits highlight the refusal of the Bush Administration, Congress, or a hostile state government to use these solutions."

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