The Bush Administration appears to lost an awful lot of environmental cases in federal court. That’s the impression of many environmental law experts, as reported in this Sacramento Bee story. There has yet to be any systematic study of the Bush Administration’s record defending its environmental policy decisions across the board, but it is unlikely the record is all that good. According to the Bee:
Legal victories for Bush’s environmental team, however, have been few, particularly in disputes over fish and wildlife.
Kierán Suckling, executive director of the Center for Biological Diversity in Tucson, Ariz., said he was astonished by a tally his legal staff compiled at The Bee’s request on outcomes of Endangered Species Act cases.
Of 78 federal court rulings and settlements in species cases resolved since January 2001, the Bush administration won just one: Judges agreed that western gray squirrels in the Pacific Northwest did not warrant protection, according to the center, which filed most of the challenges.
“I asked lawyers around the country, ‘Are there any other cases? Have I missed something?’ and everyone seems to agree that this is correct,” Suckling said.
House Oversight and Government Reform Committee Chair Henry Waxman is also requesting information from the EPA on how it has fared against legal challenges to its rules in the D.C. Circuit.
The Bee article quotes me saying the following: “We can say they have a poor record in court. I’m not sure we can say they had the worst record.” My point was that, in some areas, it is not clear that the Bush Administration’s legal record is all that worse than those who came before. I would like to qualify this statement (as I did to the reporter). As I explained to the Bee reporter, it was certainly my impression that land and resource agencies (Interior, USFS, etc.) had a worse record defending their decisions in federal court than prior administrations, and it is my impression that these agencies have been less diligent in seeking to comply with statutory mandates than under prior administrations. The ESA numbers cited in the story certainly confirm that impression.
When it comes the Environmental Protection Agency, however, it is not clear to me that the Bush Administration is losing more often than its predecessors. The Bush EPA has lost some big cases, and sought to defend some blatantly illegal policy decisions (see, e.g., here), but the Clinton Administration also had its share of high profile losses, including several cases in which federal courts rejected Clinton policies with strong or dismissive language. In one instance, the Clinton EPA had the same policy decision overturned three times in the D.C. Circuit. So, until I see data showing that the Bush EPA has a worse record than prior administrations, I am inclined to believe that the problem is with the EPA, rather than any specific administration, but the data may well prove me wrong.
UPDATE: Assuming, as I do, that the Bush Administration’s preference for less stringent and more industry friendly environmental regulation is not, in itself, sufficient to explain its difficulties in court, then what is the problem? Here is what I hypothesized in a prior post:
This has been a problem within the EPA for quite some time, in administrations of either political stripe. Yet this problem may be compounded by two factors somewhat unique to this administration: 1) the minimal attention paid to environmental policy questions, and 2) an expansive view of executive authority. Combined with the EPA’s traditional resistance to statutory constraints, the result is an agency out of control and without adult supervision.