Rules of the road - Lawyering in a Larger War
| Author | Oliver Houck |
| Position | Professor of Law at Tulane University in New Orleans, Louisiana |
| Pages | 6-7 |
Page 6 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2009
W hat is a forest for? It
is a question that pro-
voked the first wave
of conservation in the
United States (when
the word “environment” was still a
century away) and one of the most pro-
vocative today in environmental law.
Its answer depends on who you are, in
a basic sense, and what you believe. In
other words, a guaranteed argument in
which few are persuaded by reasons.
Forests are for fighting.
Twenty years ago the forest ques-
tion triggered the most hard fought
environmental controversy in America.
e Alaska campaign, which lasted ten
years, wolf reintroduction
into Yellowstone Park, which
drew over half a million com-
ments, and Superfund litiga-
tion, which continues to lead
the pack in the number of
lawsuits notwithstanding, a
government proposal formed
in the late 1980s to prohibit
new road building in 53 mil-
lion acres of national forests
led to a virtual war, more
public hearings than have
been conducted on any mea-
sure of the federal government in histo-
ry, over a million public comments, no
fewer than five lawsuits, that morphed
into yet more lawsuits, dueling federal
circuits, spectacular flip-flops by suc-
cessive administrations, and, somewhat
abated, still in court, still awaiting fur-
ther developments, continues today.
Tom Turner’s Roadless Rules: e
Struggle for the Last Wild Forests tells the
story of this war. A skilled environmen-
tal writer in his own right, Turner was
also a participant in the struggle, which
gives his book both an immediacy, and
a bias. Turner sides with the environ-
mentalists; he is one, to his fingertips.
On the other hand, he gives full pages
of play to the views of the rule’s primary
antagonist, Undersecretary of Agricul-
ture Mark Rey. I would call the book
biased-but-fair, and a very good read.
At one level, the book is about envi-
ronmental litigation. It opens with an
extended scene in the federal district
court of Wyoming, where the roadless
rule was under challenge, and provides
a blow-by-blow from the hearing tran-
script in which nearly all arguments of
the several cases unfold. Here are cameo
shots of the lead lawyers and, of par-
ticular interest the federal judge, whose
hostility towards the rule was patent;
antipathy for President Clinton, who
approved the rule, reached paranoia;
and contempt run rampant for a mag-
istrate in California who had decided
in favor of the rule. Already we are in
a world where legal argument covers
deep and abiding feelings.
e lawsuits came in waves. Coali-
tions of timber, mining, oil, and off-
road vehicle interests, in concert with
their dependant communities and host
states, filed suit against the rule in Utah,
Idaho, Alaska, and North Dakota be-
fore the ink on it had time to dry. eir
claims ranged from an alleged failure
of public participation, to inadequate
consideration under the National Envi-
ronmental Policy Act and a violation of
the Wilderness Act.
e public participation claim was
hard to fathom; no rule in history had
sought and received more involvement
— two public hearings at the site of ev-
ery national forest, for openers — nor
drawn more comment. is argument,
however, would persuade the Wyoming
district court to enjoin the rule; from
the transcript one has the feeling that
any argument would have prevailed.
e other two claims, however, were
better grounded. e Forest Service
had restricted its discussion of NEPA
alternatives to those that would bar
new roads — a kind of assume-your-
conclusion that environmentalists are
often quick to condemn. e Wilder-
ness Act claim was based on the notion
that the rule in fact created wilderness
without going through Congress, as
wilderness designation requires. Once
out of the box, however, the litigation
began to take unpredictable twists and
turns like a football play gone
mad, new teams appearing
from the sidelines, the ad-
dition of frisbees and a soc-
cer ball. Both sides won and
both sides lost. Together, they
jammed the machine.
is description, however,
would miss the point of the
book. e roadless rule fight
was a political campaign, the
most sophisticated such cam-
paign in the United States
until the advent of climate
change. It carries the cautionar y mes-
sage for environmental lawyers that
they are but cogs in a larger machine,
and unless the rest of the machine
works their environmental victories are
likely to be Pyrrhic ones.
Corporate environmental law firms
have been operating on this principle
for decades, hiring media relations
firms, retired legislators, focus groups,
pollsters, opinion editorial writers, and
other campaign specialists — even
placing potential opposing firms on re-
tainer so as to conflict them out of the
matter.
Public interest environmental firms
RULES OF THE ROAD
Lawyering in a Larger War
By Oliver Houck
in T h e li T e r a T u r e
Roadless Rules: Th e Struggle for
the Last Wild For ests, by Tom
Turner. Island Press. $27.50.
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