Western Republicans seek a new court of, by, and for the cowboys.
The purpose of the U.S. Circuit Court system is to provide uniform interpretation
of federal law for every region of the country. Since the nine western states in
the Ninth Circuit contain a large amount of public land, that court gets more than
its share of environmental casesand the welfare ranchers and timber barons of
Marlboro Country are very unhappy with the way these cases are being decided. In
recent years the Ninth Circuit has, for example, blocked new timber sales in old
growth forests through much of the Northwest to protect the northern spotted owl,
upheld the right of citizens to sue under the Clean Water Act, and voided hundreds
of damaging grazing leases on national forests in the Southwest.
Such decisions have led the "wise-use" group People for the West to accuse the
court of "activist judicial malpractice." Senator Slade Gorton (R-Wash.) complains
that the court is contaminated by a "California judicial philosophy"
presumably a pro-environmental one. Senator Conrad Burns (R-Mont.) fears "an
increase in legal actions against economic activities . . . such as timbering,
mining, and water development." Their solution is to create a new Twelfth Circuit,
comprising Alaska, Arizona, Idaho, Montana, Oregon, Washington, and maybe Hawaii
and Nevada. The once-mighty Ninth would be reduced to exercising its judicial
philosophy over California, Guam, and the Northern Mariana Islands.
Mark Mendenhall, a spokesman for the Ninth Circuit, says that the would-be court
splitters are "trying to get different outcomes in environmental and other cases."
Proponents piously disavow any such intention. "In my view," wrote Burns in an op-
ed column in the San Francisco legal newspaper The Recorder, "the fact that the
Ninth Circuit is undeniably out of step with the rest of the nation is perhaps the
least of the multitude of reasons to consider splitting this giant court." Oft-
cited grounds include the district's enormous size ("No one court can effectively
exercise its power in an area that extends from the Arctic Circle to the Tropics,"
claims Senator Frank Murkowski [R-Alaska]), the fact that the Supreme Court
reversed 28 of the 29 cases from the Ninth Circuit it chose to review in the last
term, and the court's formidable backlog of cases. Court defenders counter that
modern transportation and communication make the district's size irrelevant; that
five other circuits had a 100 percent reversal rate and that in two of the past ten
years the Ninth's rate has been lower than the national average; and that cases are
piling up because 10 of the court's 28 seats are vacant and the Senate is dragging
its feet on confirming Bill Clinton's appointments. "It has become clear to me that
the Republicans are not going to appoint another Ninth Circuit judge until the
circuit is split," says Senator Dianne Feinstein (D-Calif.).
Feinstein is a member of the Senate Judiciary Committee, where antiNinth Circuit
efforts over the past 20 years have traditionally been bornand died. The latest
campaign, however, was launched from the Senate Appropriations Committee, whose
chair, Ted Stevens (R-Alaska), is angry over a Ninth Circuit ruling favorable to
Native land claims in his state. Despite the objections of House Judiciary
Committee Chairman Henry Hyde (R-Ill.), California's Republican Governor Pete
Wilson (who called a previous plan to split the court "environmental gerrymandering"),
and the American Bar Association, a court-splitting measure attached as a rider to a
Justice Department funding bill managed to pass the Senate. The legislation stalled in
conference committee, however, and the court splitters were forced to settle for a
commission that will study all federal circuit courts and issue a recommendation later
The cowboys will be back then. Not since Franklin Roosevelt tried to pack the Supreme
Court has there been such a blatant attempt to manipulate the judiciary for political
purposes. Interpreting the Constitution, after all, is not supposed to be a regional
matter. "There is not a western Constitution," says Senator Joseph Biden (D-Del.).
"There is one Constitution." Paul Rauber
Putting an end to the recreational oil spill.
When people think about toxic water pollution, they imagine a belching pulp
mill or drunken oil-tanker captain. Worse offenders, however, are nearer at
hand: Uncle Billy fishing out on the reservoir in his motorboat and his kids
roaring around on their Jet Skis. The two-stroke motor that powers both is the
workhorse of recreational boating. It's cheap, fast, and as dirty as can be.
It is in fact (with the possible exception of storm-drain runoff) the primary
source of toxic water pollution in the United States. And, with any luck, it
will soon be putt-putting toward the scrap heap of history.
Two-stroke engines are amazingly inefficient. Powered by a mixture of oil and
gasoline, they discharge a quarter of their fuel unburnt into the water,
contaminating it with carcinogenic benzene and toluene. Their air emissions
aren't much better: a by-product of burning oil is polycyclic aromatic
hydrocarbon, one of the principal carcinogens found in cigarette smoke.
According to the EPA, a 70-horsepower two-stroke operating for an hour
releases as much hydrocarbon pollution as a car driven 5,000 miles. The
amount of unburnt oil these stinkers put into our lakes, rivers, and drinking-
water reservoirs every year is 15 times what the Exxon Valdez spilled. The
crud from motorboats in Lake Powell alone amounts to a Valdez-size spill every
In order to preserve its famous clarity, California's Lake Tahoe is banning
two-strokes effective June 1999. (Washington's San Juan Islands are banning
Jet Skis, but mostly because of their infernal racket.) Switzerland has
outlawed two-strokes from Lake Constance, and prohibits their sale. As a
result of the hard-won Clean Air Act revisions of 1990, the EPA entered into
negotiations with marine-motor manufacturers on reducing their products'
hydrocarbon emissions. The result was a weak compromise: a 75 percent
reduction in new models by 2006.
Incredibly, the agency ignored an already existing alternative. The four-
stroke motor is quieter and 40 times cleaner than the old two-stroke, and
7 to 10 times cleaner than the new two-stroke models on the drawing board.
Four-strokes cost about 15 percent more, but the difference is soon made up
by the fact that they get up to 4 times the gas mileage of their polluting
"The EPA is allowing these guys nine years to phase in a technology that's
ten times worse than a four-stroke," complains Russell Long of the
environmental group Bluewater Network, a coalition of boaters, fishers, and
clean-water advocates. The feds call four-stroke motors a "revolutionary
technology," he says, even though Honda has been making them for over 25 years.
Bluewater is taking up the battle where the EPA left off. While many California
drinking-water reservoirs don't allow bathing for fear of bacterial
contamination, Long points out, three-quarters of them allow recreational
motorboating. Using California's Proposition 65, which forbids the discharge
of carcinogenic chemicals into drinking water, Bluewater has filed suits
against 30 outboard manufacturers, "personal-watercraft" manufacturers, and
outboard rental concessionaires, demanding that they stop selling or renting
conventional two-strokes in California.
Boaters and fishers who own two-strokes but don't want to pollute their lakes
and rivers don't have to wait for the courts to settle things, however. If
you "donate" your old motor to Bluewater and then scrap it, the nonprofit can
offer you a charitable tax deduction, which you can apply to the purchase of a
clean new motor. (Be sure to make arrangements with them before your trip to
the dump.) Where else can you protect your family's drinking water and get
paid for it? This charity begins at home.Paul Rauber
Bluewater Network is a project of Earth Island Institute, 300 Broadway,
Suite 28, San Francisco, CA 94133; (415) 7883666;
Worse Things Could Happen
"The Sierra Club has become very, very powerful in the United States Congress."
Anti-environmental Representative Helen Chenoweth (R-Idaho), at a
September 1997 congressional hearing on the Sierra Club's proposal to restore
Glen Canyon by draining Lake Powell.
Republican Charm School
The good news," pollster Frank Luntz advises Republican politicians,
"is that we have nowhere to go but up. The bad news is that it's a mile-
long vertical climb and we're carrying a lot of baggage."
Last fall, in a lengthy memo to recalcitrant Republicans in Congress, Luntz
lectured on how not to sound like an eco-thug. "Remember," he said,
"even Republicans have limited faith in your ability to keep their air
clean and their water clean. You have a lot to prove."
But instead of cleaning up the environment, Luntz prescribed cleaning up the
lingo. "Stay away from risk assessment [and] cost-benefit analysis,"
he advises. "Your constituents don't know what those terms mean, and they
will assume that you are pro-business rather than pro-environment." And
puh-leez stop talking about "rolling back regulations," he said.
"If we suggest that the choice is between environmental protection and
deregulation, the environment will win consistently."
Other hints: Don't attack the EPA, which most Americans think is doing a good
job. Say you support "a sensible environmental policy that preserves all
the gains of the past two decades" (even if you voted against them). Talk
about your "specific environmental concerns, whether they be forests,
natural resources, endangered species, or whatever." Above all, "
remember, you are arguing that Republicans have a better approach to solving
environmental challenges, not that the environment is not a significant issue.
And don't forget to smile. -Paul Rauber
Standing Up for Brutality
When TV viewers saw sheriff's deputies methodically swabbing liquid pepper
spray on the eyes of anti-logging protesters in Northern California, most
reacted with shock and outrage. An attorney for nine of the young victims
called the use of the chemical during three separate incidents-two of which
were videotaped-"the most torturous act I have ever heard of."
But one man cheered the brutality. To GOP Congressman Frank Riggs, in whose
office the protesters staged a peaceful sit-in in early October, "The
victims in this incident were my employees." He accused the protesters of
supporting Unabomber defendant Ted Kaczynski, and took the House floor to label
them "reckless, wanton lawbreakers." He later called them "an
affront to Gandhi and Martin Luther King."
The demonstrators, however, disavow sympathy not only for Kaczynski, but for
violence in general. In all three sit-ins (the other two took place at the
headquarters of Pacific Lumber Company, owner of embattled Headwaters Forest)
activists were linked by locked metal sleeves. The videos show the mostly female
protesters writhing in pain as the chemical is rubbed in their eyes.
A former cop and sheriff's deputy, Riggs is a fierce proponent of logging.
He made the League of Conservation Voters' 1995 "Dirty Dozen" list,
and wears his anti-environmentalism like a badge of honor. "Newt is
greener than I am," he once bragged.
Gandhi and King, one suspects, are not resting peacefully.
B. J. Bergman
We've all heard that Americans are living beyond their means. Now "ecological
footprint analysis," a research technique invented by William Rees at the University of
British Columbia, quantifies that fact by calculating just how much more of the world's
resources Americans are consuming.
Given current lifestyles, Rees says, it takes more than 12.5 acres to create the materials
and energy consumed by each U.S. citizen. Unfortunately, less than 7 acres of American soil
is available per capita, and only 3.7 acres is available worldwide. Rees concludes that
supporting the world's population in the manner to which Americans (and Europeans) are
accustomed would require three more Earth-size planets.
Rees and co-author Mathis Wackernagel have written a book, Our Ecological Footprint:
Reducing Human Impact on the Earth (1996). It is available for $14.95 plus $3 shipping
(U.S. dollars) from New Society Publishers, P.O. Box 189, Gabriola Island, British Columbia,
V0R 1X0 Canada; (250) 247-9737.