|Active Link, New York Times
22 June 2002
THE BURNING SEASON
Era of the Big Fire Is Kindled at West's Doors
By TIMOTHY EGAN
This article was reported by Timothy Egan, Michael Janofsky, Andrew C. Revkin and James Sterngold and written by Mr. Egan.
WINTHROP, Wash., June 22 The fires came early this year to the West, chasing people out of valleys in Colorado, rousting animals from late slumber in Alaska, choking the sky with smoke in Arizona woods that have so little moisture they seem kiln-dried.
The price of holding back nature has come home, fire officials say. A century-long policy of knocking down all fires has created fuel-filled forests that burn hotter and faster than ever. The era of big fires and with it, the need for big government to contain them is at hand, many firefighters say. Already, with 1.9 million acres burned by the first day of summer, wildfires across the West are burning twice the acreage of the 10-year average for this time of year.
March 20, 2002
U.S. Acts to Shrink Endangered Species Habitats
By GREG WINTER
LOS ANGELES, March 19 The Bush administration, under pressure from lawsuits by real estate developers, is urging federal judges to roll back legal protections for nearly two dozen populations of endangered species around the country.
In an effort to resolve as many as a dozen cases against them, the United States Fish and Wildlife Service and the National Marine Fisheries Service, two agencies that enforce the Endangered Species Act, are asking federal courts in California to rescind millions of acres of protected habitat for whipsnakes in the state's northern grasslands, rare birds in the scrublands to the south, fairy shrimp in shallow pools along the coast and salmon among the rivers, estuaries and shorelines of four Western states.
The administration is also questioning whether to preserve the "critical habitat" designations that safeguard millions of acres for about 10 other endangered species, from the Mexican spotted owl to the California red-legged frog, signaling a widespread shift in environmental policy that has consoled developers and incensed environmentalists.
"The Bush administration is voluntarily waving the white flag," said Joel Reynolds, a lawyer for the Natural Resources Defense Council, an environmental group that has intervened in a Los Angeles federal court on behalf of the California gnatcatcher, a tiny brush bird. "It is a significant step in the wrong direction for wildlife protection," Mr. Reynolds said, arguing that the administration's willingness to concede in these cases could indicate it is inclined to do so in future lawsuits.
In cases where they have relented to developers' demands, administration officials contend that they have had little choice. Last May, in a suit brought by cattlemen and farmers in New Mexico, the United States Court of Appeals for the 10th Circuit invalidated nearly 600 miles of protected streams and river beds for the willow flycatcher because the government did not fully consider how businesses and landowners would be affected, as the law requires.
An equally limited economic analysis took place for most of the 150 habitats that have been set aside for endangered species, limiting development in the areas. Most were set aside after the Clinton administration was forced to map protected areas by federal court decisions in lawsuits brought by environmental groups. Because of that, Bush administration officials say they have little confidence of prevailing in the many lawsuits brought by developers nationwide.
"The interpretation was simple: We would lose," said Gordon Helm, a spokesman for the Fisheries Service, which announced last week that it hoped to resolve a suit with the National Association of Home Builders by withdrawing the protected habitats for 19 populations of chinook, chum, coho, sockeye and steelhead in California, Oregon, Washington and Idaho.
While they acknowledge that carving out critical habitats ensures additional protections for rare animals, administration officials say the Endangered Species Act still offers ample ways of shielding the environment from destructive forms of development. Once an animal is listed as endangered, for example, federal officials have the power to intervene in any development that seriously threatens its well-being.
"Vacating the critical habitats is not going to have a significant impact on the species," said Chris Tollefson, a spokesman for the Fish and Wildlife Service. "If it was, we wouldn't be proposing it."
Whenever an animal goes on the endangered species list, the geographic area considered essential to its survival must be listed as a critical habitat, subject to a heightened degree of scrutiny that landowners have long criticized as cumbersome, if not simply unmanageable. Though new homes and even large-scale complexes can still be built in the protected areas, they must often undergo extensive reviews.
The rules have offered a lifeline for environmentalists hoping to curb infringement into pristine habitats. But developers argue that hampering construction on millions of acres of prime real estate, especially for an animal that may not even live in the area, violates the mandate of the Endangered Species Act.
"Is the cost to society at large greater than the potential benefit to the species?" asked David Smith, general counsel of the Building Industry Association of Southern California. "That's what the government is supposed to consider."
As they sketched out the boundaries for dozens of protected areas over the last five years, however, federal officials typically concluded that there were no significant economic consequences to doing so, prompting a wave of federal lawsuits by developers.
"How do you set aside 500,000 acres of the most valuable land in the country and say there is no economic impact?" asked Rob Thornton, a lawyer trying to throw out the gnatcatcher habitat that spans the coast from Orange County to San Diego. Builders in Southern California found that preserving the habitat would cost the state $300 million to $5.5 billion in lost construction jobs and new housing.
Farther north, developers amid the inland hills of Alameda County contend that the 400,000 acres of protected lands awarded to the whip- snake are so ill-conceived they blanket the entire city of Dublin, a town of 32,000 people. "How can a city of thousands be considered a critical habitat?" asked Guy Bjerke, vice president of the Home Builder's Association of Northern California.
Though the government has offered to withdraw many of the contested habitats, at least until it can perform a more detailed economic analysis, it is up to the federal judges reviewing such cases to approve the concessions. In the gnatcatcher case, for example, a federal judge in Los Angeles has indicated his willingness to grant the government's request. If such decisions become common, environmental groups argue, a burst of new development is likely to follow, impinging upon endangered species, even if the government ultimately decides to restore the habitats once its economic review is complete.
"The Bush administration is undoing these critical habitats without explaining what they're going to do instead to recover endangered species from the brink of extinction," said Bill Corcoran, the Sierra Club coordinator who is organizing against developers in Southern California.
But to accuse the administration of being particularly insensitive to endangered species is unfair, wildlife officials argue. After all, President Bill Clinton only began setting aside critical habitats for endangered species after environmentalists forced his administration to do so in the courts.
What is more, Bush officials argue, with all the lawsuits over habitats, filed by developers and environmentalists alike, the Fish and Wildlife Service's ability to put new animals on the endangered species list ground to a halt last year.
"Unfortunately, we're in a situation now where the needs of the species aren't really driving the process," Mr. Tollefson said. "It's who's getting into the courtroom first."
June 13, 2002
Alaska, No Longer So Frigid, Starts to Crack, Burn and Sag
By TIMOTHY EGAN
NCHOR POINT, Alaska, June 13 To live in Alaska when the average temperature has risen about seven degrees over the last 30 years means learning to cope with a landscape that can sink, catch fire or break apart in the turn of a season. New York Times.
May 19, 2002
Judge Takes on Bush on Mountaintop Mining
By FRANCIS X. CLINES
EWISBURG, W.Va., May 16 The towering strip mining machines that have been systematically decapitating mountains in Appalachia have once again run up against a flinty federal judge convinced that government agencies illegally allow the coal industry to pollute and obliterate the region's vital waterways with millions of tons of waste.
In a direct challenge to the Bush administration, the judge, Chief Judge Charles H. Haden II of the Southern District of West Virginia, found last week that the administration's new rule change that allows the dumping of mining rock and dirt into the streams and valleys of Appalachia is an "obvious perversity" of the Clean Water Act.
"The rule change was designed simply for the benefit of the mining industry and its employees," Judge Haden ruled. He ordered the Army Corps of Engineers to stop issuing permits to companies that have been dumping millions of tons of waste into hundreds of miles of waterways and hollows in the mining practice known as mountaintop removal.
This is the process of blasting away mountaintop rock to reach low-sulphur coal veins with mammoth bulldozers and drag lines. The practice pours waste down into the mountain hollows, where residents have been increasingly displaced or bought out by the companies.
Judge Haden's ruling has stunned the Appalachian coal industry, which warns that the decision could, in theory, shut down any mine in the nation that dumps waste into water. But it has cheered environmental groups that have been contending that the Bush administration, mindful of three critical electoral votes Republicans won here in the close 2000 presidential election, has rewarded the coal industry with job appointments and policy accommodations.
The administration, insisting its new rule on mining waste protects the environment, warned this week that the court ruling will mean "severe economic and social hardship for the region," with tens of thousands of jobs at risk along with hundreds of millions in state revenue and profits in related industries.
"Mining companies will almost certainly suspend future mining projects in the Appalachian region, lay off existing workers and abandon plans for hiring new ones," Glenda E. Owens, deputy director of the United States Department of Interior for surface mining, cautioned this week in urging Judge Haden to stay his order pending an appeal. The judge is not expected to rule on the stay until next month.
"That's a red herring," said Joe Lovett, director of the Appalachian Center for the Economy and the Environment, one of the litigants suing the corps of engineers. Mr. Lovett said the ruling, if upheld, would protect communities, streams and hardwood forests from destruction and encourage a more balanced economy in lumbering and better controlled underground and strip mining.
Judge Haden has been over this legal terrain before. In 1999, he ruled that state agencies had failed to enforce federal environmental protection laws affecting mountaintop removal. Under the process, hundreds of square miles of mountains have been leveled and dozens of communities have been bought out.
Judge Haden's decision in that first suit was overturned on appeal a year ago. Without ruling on the merits of the complaint, a panel of the appeals court found that West Virginia had constitutional immunity against the lawsuit. It was filed by a resident who had held out against a buyout when his neighbors abandoned Pigeon Roost Hollow in Blair, W.Va., as waste descended.
The new, broader lawsuit was filed against the federal government by community and environmental groups in a four-state coal region of Appalachia. Challenging a mine waste permit last year on the West Virginia-Kentucky border, the groups, operating as Kentuckians for the Commonwealth, charged that the Army Corps of Engineers illegally favored the coal industry by permitting destructive waste disposal in violation of corps regulations that specifically ban such dumping.
Judge Haden agreed. The judge shocked the mining industry and environmentalists by reaching beyond the issue of existing regulations to strike down the Bush administration's new rule regarding the dumping of rock and dirt.
He said the rule was an effort by federal agencies "to legalize their longstanding illegal regulatory practice." A change that basic, Judge Haden wrote, could only be tried "in the sunlight of open Congressional debate and resolution, not within the murk of administrative after-the-fact ratification of questionable regulatory practices."
Industry and government warn of economic ruin from the ruling, with 28,000 miners now at work in the $6.3 billion mining industry in West Virginia and Kentucky, mainly mountaintop removal. The mining industry insists it dumps fill only in seasonal streams, not those running year round, and notes that some companies invest in modified restoration of the shaved mountains.
The full damage from the stream dumping is only beginning to emerge, said Mr. Lovett and his co-counsel in the lawsuit, James M. Hecker of Trial Lawyers for Public Justice. They have used the Freedom of Information Act to obtain preliminary reports in a federally ordered consultant's study of environmental effects. Mr. Lovett said the consultants found that the mining industry would be more inconvenienced than devastated by proper application of the Clean Water Act.
Coal industry officials, with hundreds of waste applications pending, are counting on another victory on the appeals level to void Judge Haden's latest finding.
In making his 1999 decision, the judge not only hiked to Pigeon Roost Hollow to view that site but also flew over the region's many mountaintop removal sites.
"The sites stood out among the natural wooded ridges as huge white plateaus," he wrote, "and the valley fills appeared as massive, artificially landscaped stair steps. Tree growth was stunted or nonexistent. The mine sites appear stark and barren and enormously different from the original topography."
The judge wondered at all the absent wildlife that "can't be coaxed back." He concluded, "These harms cannot be undone."