Government by Litigation

Increasingly, public officials ignore laws they're paid to uphold. Citizens and interest groups regularly drag these same bureaucrats into court, trying to ensure that the laws of the land are enforced. But now even the courts, once bastions of authority,

The industries have strong lobbies. Ranching, especially, draws great power from the image that the cowboy holds in our national consciousness. And there is a strong Forest Service culture saying: This is the way we have always done things, and we have no intention of changing.

If the industry lobbies are effective, so are the environmental groups/litigation engines, such as Forest Guardians, Defenders of Wildlife, the Arizona Center for Law in the Public Interest and the Southwest Center for Biological Diversity, that generate the citizen lawsuits. The Southwest Center, for example, has filed petitions to list 33 species as threatened or endangered under the Endangered Species Act, and has filed 77 lawsuits against state and federal agencies since 1993 over dams and grazing and logging projects. So far it's got a win-loss record of 35 and nine, with 30 cases still in the courts.

The cumulative effect of the lawsuits is causing government agencies to lash out like a dog biting at a swarm of bees.

"We're not able to concentrate on landscape or ecosystem management because we're constantly being called back to list this species or defend ourselves in this lawsuit, and we pull good biologists off their work to conduct this work," says Jeff Humphries of the Fish and Wildlife Service.

Felicia Marcus, regional administrator for the U.S. Environmental Protection Agency, admits that her agency treats citizen suits like diagnostic indicators.

The law sets out numerous rules and deadlines for responding to laws like the Clean Air Act.

"We can't possibly keep up with them all," Marcus says. Before coming to the EPA, Marcus was an attorney filing lawsuits on behalf of environmental groups. Now from the defendant's side of the case, she still says the suits "are important in prodding us all to move forward. Without citizen suits to keep the agency moving, it wouldn't be anywhere as near as we are in this country to getting clean air. And we are making progress."

But in the process, is she abdicating the agency's responsibility for setting and enforcing policy?

In fact, the EPA has been sued more than a dozen times since 1985 by David Baron of the Arizona Center for Law in the Public Interest for not imposing Clean Air Act standards on the cities of Phoenix and Tucson. Those suits have resulted in state auto-emission tests, clean-burning fuels, dust-control standards on construction and a host of other measures, which Baron feels were only extracted from a resistant EPA under threat of court sanctions. The agency delayed, postponed, granted extensions, set bare-minimum guidelines and even approved plans that violated the law.

To Marcus' protestations, Baron thinks the agency's perennial tardiness is based in cowardice.

"It's got nothing to do with resources," Baron says. "The agency refuses to disapprove a state clean-air plan not because it's going to require any more resources for them to disapprove it, but because if they do, the governor's going to get mad at them and the legislators will and the congress people will. And so they do whatever they can to avoid that result."

Baron's suspicions seem borne out in that whatever standards the agency is forced to impose unleashes a torrent of criticism. The daily and business papers run litanies by free-market editorialists whining about what the new rules will do to business, asking why the EPA is so mean to us when the air is getting cleaner. None of them mentions the Gulden's-mustard-colored cloud that hovers over downtown--or that not being able to breathe is bad for business.

"We haven't had a [carbon monoxide] violation in the last two years," says former Symington aide Chuck Coughlin, who is now a consultant with the firm High Ground. "We have the most aggressive set of CO control measures of any place in the country, but [Baron's] got the EPA following bureaucratic measures in order to hassle us to continue to do more."

One man's "bureaucratic measures" are another's "law enforcement."
Yet even Marcus, the EPA's regional administrator, will defend the suits.
"I don't necessarily agree with the timing or the substance of every single suit filed," she says. "But I think they're all legitimate because the law is there for a reason. Some people critique others for filing lawsuits, as if they're doing something wrong. All they're doing is trying to get the law complied with, which is their legitimate right to do."

That outrageous statement belies an institutional exasperation that says, Yup, we can't enforce the law by ourselves.

The thought and deliberation that went into a bill like the Clean Air Act can be tossed out by the expedience of the bottom line of special interests.

For example, Arizona Congressman J.D. Hayworth is co-sponsoring legislation to postpone the latest national clean-air guidelines signed into law earlier this year. In October, Arizona Citizen Action, a political-watchdog organization, pointed out that Hayworth had taken $86,000 worth of campaign contributions from the Air Quality Standards Coalition, an alliance of miners and developers and oilmen and loggers and farmers whom Hayworth helps on many fronts, not just preventing clean air.

"You'd think the political self-interest would be in representing the urban constituents who care about the watershed and the airshed and the wildlife and the tourism," says Rob Smith of the Sierra Club. "I don't think they are representing their constituents. The [politicians] that vote against the environment get markedly higher campaign contributions from polluters and developers. In many cases, [they're] actually thwarting the will of their constituents."

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