Earth Lawyer Blog

Suit Filed to Stop Trapping of Canada Lynx in Montana

Last Friday, we, along with our friends at the Western Environmental Law Center, filed a suit against the State of Montana on behalf of three non-profit conservation groups to curb the trapping of threatened lynx.  Because foothold/leghold and Connibear kill traps and snares are indiscrimintate devices, those set for other animals can and do capture lynx.  Trapped animals suffer terribly and are often severly injured or killed.  Our hope is gain proper regulation of trapping in occupied lynx habitat and lynx critical habitat in Montana, so these amazing creatures can embark on what will hopefully be a successful recovery free from senseless pain and suffering.

Read the article in the Missoulian here.

Download the Complaint here: Download 1.0 - Complaint

SPLT's Celebration of the Prairie

This Thursday, December 6th, the Southern Plains Land Trust ("SPLT") will host its Celebration of the Prairie, an evening at Gallery 1261 in Denver to discuss prairie ecosystem conservation and raise money for SPLT's land acquisition fund.  For those that aren't yet aware, SPLT is a non-profit land trust, which purchases and then places under conservation easement large parcels of short-grass prairie for the benefit of native wildlife.  Our lands, which lie in southeastern Colorado, host naturally occurring populations of bison, prairie dogs, swift fox, coyotes, cougars, burrowing owls, and various hawks, falcons, and songbirds.  By virtue of conservation easement, these critters enjoy a permanent respite on SPLT lands from hunting, drilling, mining, development, or any other extractive use.  SPLT's goal is simple: to create a contiguos network of short-grass prairie left to thrive in its natural state.

Hopefully you can join us this Thursday for good food, drink, and conversation.  We'll have a live auction and a live falconry presentation.  For a mere $35, you can mingle with the other 100+ like-minded attendees, learn about the variety of wildlife in our great State, and hang out with predatory birds.  How cool is that?!

Will Obama's Second Term Meaningfully Address Climate Change?

It's an important question... and one environmentalists are not conviced will be answered in the affirmative.  After all, President Obama went silent on the climate change issue during the election cycle and was unable in his first term to achieve new legislation addressing the climate crisis.  At best, Obama directed the EPA to promulgate and enforce stricter greenhouse gas emission limitations.  While the latter is certainly a step in the right direction, this is a global problem that needs an actual solution - not just a few new pollution standards.

As reported today by Energy and Environmental Management, Senate Majority Harry Reid has expressed interest in working with the President and his congressional colleagues to develop and hopefully get through the House federal legislation aimed at curbing climate change.  Read the article here.  While laudable, this of course will prove to be a daunting task.  Many House Republicans hitched a ride to Washington on the backs of oil and gas companies and will stymie any effort to make drilling or other forms of extraction more difficult or less attractive.

With this reality in mind, I'd like to make a suggestion.  While garnering public and congressional support for a federal climate statute, the Obama Administration should lead the way on eliminating federal subsidies to the oil and gas industry.  In fact, in the midst of what Republicans refer to as a national fiscal crisis, Congress should be working with the President to cut all needless subsidies, especially those given to big oil and gas.  Exxon Mobil, for instance, reported $41.1 billion in profits in 2011 alone. Confirm the number here.  This corporate giant simply does not need our taxpayer dollars.  Indeed, America has myriad better ways to spend (or save) its money.

Granted, the second term Obama Administration has many issues to tackle, environmental and beyond.  But Obama has, at least for the moment, plenty of what George W. Bush would call "polictial capital." The time to act is now.  The clock is ticking, and the climate crisis waits for no one.  We must have meaningful legislation addressing climate change.  Until then, we need federal action that not only curbs emissions, but helps the nation dig its way out of debt.  Ending big oil and gas subsidies serves both agendas.

Yale School of Forestry & Environmental Studies Examines Failing Mexican Wolf Recovery Program

As many of you know, I have represented non-profit enviornmental plaintiffs in several cases on behalf of the critically endangered Mexican gray wolf.  One of these cases, which I filed on behalf of WildEarth Guardians in 2010, demanded a decision from the U.S. Fish and Wildlife Service as to whether it would list separately from Canis lupus the Mexican gray wolf as a distinct endangered subspecies under the ESA.  A separate listing would benefit the Mexican gray wolf by providing heighted protections for Mexican wolves in the wild.

Download the Complaint as filed.

As a result of this lawsuit, the Service agreed to publish a decicion on the Mexican wolf listing by October of this year.  On October 9th, the Service formally declined to offer the Mexican gray wolf the full protections of the ESA.

Download 77 FR 61375-01 (10-29-12).

On October 25th, the Yale School of Forestry & Environmental Studies highlighted the Service's ill-advised decision in its Environment 360 publication.  I wanted to share the article, both to give an unbiased history of this program and to point out that the U.S. government continues to sell short this incredibly charasmatic and biologically important carnivore.  Indeed, this is but the latest in a long line of federal and state decisions keeping the Mexican wolf from recovering in the wild.  Like many others invested in the success of this reintroduction and recovery program, I am afraid that this ongoing and unfortunate trajectory will lead not to the subspecies' recovery - but to its eventual demise.

Read the Yale article here.

Environmental Issues Conspicuously Absent from Presidential Debate

Last night, Governor Romney held fast to his mantra: "Jobs, Jobs, Jobs."  Indeed, Romney seems to want jobs, jobs, jobs at the expense of everything else important to our body politic.  Yes, jobs are critical, but don't we still care about civil rights and a healthy planet and society?  When did we lose sight of the fact that we need healthy, happy, capable people to inhabit our work force and make our country successful?

Think about it.  If I can't get access to family planning, then how can I focus on my education to prepare myself for the demands of tomorrow's jobs?  If I can't get preventative health care, then how can I be sure to show up each day and give my all to the career I have earned?  If I can't depend on clean water flowing from my tap each morning, how can I meet the basic needs of me and my family, such that we are free to be productive members of society?  If I can't depend on unpolluted outdoor spaces in which to recharge my energy, then how can I foreclose the possibility of burnout and keep myself engaged in my challenging, yet chosen profession?  

The examples here are endless, but the point is simple: the things we do and accomplish as a society are a direct result of the health and well-being of the individuals that make up our society.  These things are not mutually exclusive.  Rather, they are integrally related.  We must educate our kids, keeps our neighborhoods safe, provide adequate nutrition, protect the rights of our people to live and express themselves freely, and - yes - safegard our biodiversity and environment.  These endeavors are not some back burner afterthought.  They are moral imperitives that must remain on the forefronts of our minds if we are ever to truly succeed as a nation that stands as a keystone in the global community.

It is easy to lose sight of the bigger picture when your mortgage is behind, bills go unpaid, or even worse, your children are hungry.  But patching up these problems with quick and dirty tax schemes and the gutting of crucial government programs is not a real solution.  Instead, we must work from the ground up to boost ourselves up by investing in our future.  In order to thrive, we must maintain the health of our society.  We can do that only by protecting our people and the environment within which they live.  After all, what good are jobs, jobs, jobs, if no one is around to take them?

Citizen Suit Fee Shifting Provisions Protect the Public's Right to a Healthy Environment

Over the past few years, there has been a clamour from the right over attorneys fees recouped by plaintiffs after successfully litigating claims against the federal government brought pursuant to the Endangered Species Act ("ESA").  The idea is to paint public interest environmental litigation as a tool for private gain.  In short, the message is that these "so-called conservation groups" sue - not because they care about biodiversity - but simply to get rich.  Those who work in the non-profit sector and/or litigate on behalf of non-profit organizations know this is silly speak.  But to a public who is neither engaged in public interest work nor informed as to how citizen suits operate, this message could carry some weight.

That's why I was pleased to see this issue raised by the Austin Statesmen.  While it isn't a perfect article, it does highlight the discrepancy in earnings between private practice and public practice lawyers and show that the ESA is not outproducing other environmental laws when it comes to legal fees. 

Read the Austin Statesman article here.

What I would have liked to see more of, though, is an emphasis on the fact that attorneys fees are required by statute only in the event that the plaintiff actually wins the case.  True, private sector industry lawyers want you to believe that public interest environmental attorneys are making millions on frivolous claims.  However, the whole idea behind citizen suit fee shifting provisions negates this argument.  Congress knew when it enacted large statutory schemes for the protection of the public health and environment that ordinary people would be helpless to enforce these laws on their own. Indeed, that was never the intent.  All of our federal environmental laws - just like the civil rights laws crafted in their wake - help Americans watchdog the government to make sure they are carrying out the laws designed to protect us all.

It is laudable that anyone would stand up in court against the federal governement to enforce their rights and those of their community to a healthy existence.  But it would be naive to think that one could do this well without the expertise of a seasoned litigator.  Congress knew this.  Even the lawyers on the other side know this.  But the hope is that you don't know this and will simply assume based on their sound-bites of misinformation that the good guys are just gaming the system.

So do your homework.  Read the ESA citizen suit provision and the Equal Access to Justice Act ("EAJA") for yourself and decide whether you appreciate the right as a person of modest means to hold the government accountable for its unlawful actions.

Read 16 USC 1540(g) here.

Read 28 USC 2412(d) here.

 

Robert F. Kennedy, Jr. Delivers

I wrote more than a month ago about RFK, Jr.'s anticipated keynote address at the 2012 CTLA Spring Dinner.  I was so inspired by him and his work that I thought it important to follow-up...

RFK, Jr. joined us on May 3rd.  That day, I not only had the pleasure of hearing him speak on the urgency for clean energy, but was also able to speak with him personally at length.  We discussed the Pace Environmental Litigation Clinic, RFK Jr.'s work with the various River Keeper organizations, his ongoing litigation against factory farms, our firm's work for endangered species, and broader philosophical issues like the ethical treatment of animals and responsible food choices.  Needless to say, May 3rd was a good day.

As I told you before on my blog, and as I told RFK, Jr. that day, I think it is so important that people like him - that is to say, accomplished environmental advocates - speak to and inspire attorneys.  Many people, especially in down economies, embark on a law school education and subsequent legal carrer as a sort of default measure.  As practicing attorneys know, however, a legal career is not something you come at lightly.  Rather, it is a challenging, honorable, and important profession that, if treated with intention, can result in tangibly positive outcomes.

It has always been my goal as a lawyer to affect change in environmental policies and practices.  My chosen cause is environmental conservation, i.e., promoting biodiversity, demanding clean air, water, and soil, and seeking environmental justice for communities – their adults and their children.  I believe that RFK, Jr. shares in this cause, and it was delightful to discuss the practice of environmental law with him.  So thank you.  Thanks to RFK, Jr. for taking the time to address Colorado lawyers, and thanks to CTLA for having the foresight to aks such a visionary to spend time with us.  It is crucial that we all, even in the throws of our busy day-to-day, revisit the reason we decided to become advocates.

Front Page Three-Part Series Examines Our Federal Killing Agency

Although it's been around for a century under various names, most Americans are unaware that we have a tax-payer funded federal agency devoted exclusively to killing wildlife.  The purported purposed of this killing, which claims the lives of millions of animals each year, is to protect the economic interests of a few individuals with the pocket books of us all.  There are four fundamental problems with this agency, now operating under the misnomer "Wildlife Services."  One: slaughtering animals en masse, especially indiscriminately or in an inhumane fashion, is morally abhorable.  Two: slaughtering animals en masse has proven to be economically unsustainable.  Three: slaughtering animals en masse is ecologically ineffectual and often utterly counterproductive.  Four: the federal slaughter is purposefully and carefully schrouded in secrecy.  The government knows that if you know about the mission and actions of Wildlife Services that you will be embarassed and then angry and then insistent on change.

In an effort to educated the public about the business of Wildlife Services, Tom Knudson of the Sacramento Bee is currently presenting a front page three-part series on our federal killing agency. The first two of Tom's three installments are available online now and linked below.  The third installment is set to be published on May 6th.  Thus far, I have found Tom's work to be both accurate and stimulating.  I applaud his interest in this topic and his willingness to bring it to the forefront.  This is the 21st century.  The time for uninformed barbarism is over. 

Read Tom's first installment here.

Read Tom's second installment here.

I will post Tom's third installment when it becomes available.

Federal Government Files First Criminal Charges Against BP

Now that BP has paid approximately $8 billion in civil damages to individuals and businesses hurt by the Deepwater Horizon explosion, the feds are finally moving in with criminal charges.  On Tuesday, the first of what will likely be numerous crimial charges were filed, this time against a former BP engineer, who allegedly destroyed evidence documenting the amount of oil leaked into the Gulf in 2010.  The Deepwater Horizon task force, which is heading up the criminal investigation against BP and possibly Halliburton and Transocean, says the evidence shows that the sunken rig could have been spouting more than 15,000 barrels of oil per day.  With Clean Water Act fines set at $1,100 to $4,300 for every barrel spilt, BP was certainly motivated to down play the gush.

I've seen lots of BP greenwashing, especially over the past year, as the company attempts to rebuild its image.  I've been particularly disgusted with how BP is clothing itself in a national ad campaign as a "friend of the Gulf."  I hope this ongoing investigation does indeed lead to more charges filed and that the public is once again reminded of how harmful domestic drilling can be - especially during this presidential election cycle.

Attorney General Holder is quoted in the New York Times as saying: “The Deepwater Horizon task force is continuing its investigation into the explosion and will hold accountable those who violated the law in connection with the largest environmental disaster in U.S. history.”  Here's hoping the Obama administration will act on its promise to hold BP and others accountable.  For those of us who care about wild life and wild places, it sure seems about time.

Read it in the news.

Robert F. Kennedy, Jr. to Speak at CTLA Spring Dinner

This is exciting!  Each year, the Colorado Trial Lawyers' Association (CTLA) hosts its annual Spring Dinner.  The spring dinner always promises a great night for Colorado's legal community to congregate over food and wine to swap stories of the successes and challenges experienced over the last year in the Colorado Courts.  But the 2012 Spring Dinner, which will take place on Thursday May 3rd, promises to be something really special.  Robert F. Kennedy, Jr., a visionary environmental business leader, attorney, and advocate, will be our keynote speaker.

For those who don't know, Robert F. Kennedy Jr. has a solid reputation for defending the environment.  He has been named one of Time magazine's "Heroes of the Planet," one of Rolling Stone magazine's "100 Agents of Change," and was featured in the enviromental documentary "The Last Mountain."

Kennedy is a professor of environmental law at Pace Univeristy School of Law and serves as co-director of the school's Environmental Litagation Clinic.  He also serves as senior attorney for the Natural Resources Defense Council (NRDC) and represents/advises other environmental and environmentally conscious groups.  Among his published books are "Crimes Against Nature," "The Riverkeepers," and "Judge Frank M. Johnson Jr: A Biography."

I think it's wonderful that Kennedy will be addressing, and no doubt inspiring, the CTLA this May.  Environmental law is still considered somewhat of a specialty, and I'm hopeful his words will spark more interest amongst our members to get involved in environmental causes and perhaps extend their advocacy to advancing conservation.  His participation also illustrates the often-overlooked though critical role of plaintiffs' attorneys in holding both government and business accountable to environmental laws designed to safeguard a healthy environment.

Kudos to CTLA for inviting Robert F. Kennedy, Jr. into our community.  And kudos to W. Randolph Barnhart, PC for acting as a Gold Sponsor of this exciting event.