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Defenders of Wildlife-Environmental Law Reporter
Judicial Accountability Project
 Judicial
Accountability Project History
The Defenders of Wildlife's Judicial Accountability Project--undertaken
with the assistance of Vermont Law School's Environmental and Natural
Resources Law Clinic--sought to fill a data void on the environmental
record of the George W. Bush Administration by analyzing all reported
environmental cases in which the Administration has presented legal
arguments regarding an existing environmental law, regulation or
policy before federal judges or magistrates. By examining judicial
decisions and legal briefs for federal cases dealing with environmental
issues, the aim was to identify quantifiable trends on whether,
or to what degree, the federal government has acted to discharge
its environmental law obligations.
The initial goal of the Project was the generation
of a comprehensive picture of trends in arguments presented by the
Bush Administration in federal environmental litigation as well
as the responses of the federal judiciary to those arguments. Preliminary
research indicated well over a thousand potentially applicable federal
cases and a complexity of litigation trends and strategies. Given
the number of cases and the multiplicity of issues represented,
the decision was made to shift the focus of the Project from a comprehensive
review to a statute-by-statute review. By focusing on cases related
to specific statutes, the Project was able to analyze trends at
a greater level of specificity and detail.
The Project utilized a database to record data from
applicable cases. By entering each individual case into a database
form that allowed the data to be quickly and easily analyzed for
a number of different factors it became possible to see trends that
are not readily apparent from reading individual cases.
The first report generated by the Project covered
trends in the arguments presented by government lawyers in federal
court litigation concerning National Environmental Policy Act (NEPA)
issues. The NEPA report covered the period from January 21, 2001
to January 21, 2003, and relied on data recorded in the database
to discern trends in federal NEPA litigation. In addition, the NEPA
report allowed the Project to refine the database forms in a way
that provided greater precision and accuracy in discerning trends.
With this refined database approach, the Project next
investigated trends in the federal Government's arguments in National
Forest Management Act (NFMA) litigation. The greater detail and
specificity of the data within the database allowed the project
to capture a more nuanced picture of trends in the government's
arguments concerning NFMA issues. The NFMA report also covered the
period from January 21, 2001 to January 21, 2003.
The final report of the project covered trends in
the government's arguments in Endangered Species Act (ESA) litigation.
The ESA report covered the period from January 21, 2001 to October
31, 2003.
One of the most challenging aspects of the Project
was that it sought to categorize the government's argument in each
case as either consistent with or contrary to accepted interpretation
and precedent of the law at issue. The Project relied heavily on
the presumption that an argument that was accepted by the reviewing
court was consistent with accepted precedent while an argument that
was rejected by a court was contrary to accepted precedent.
Another issue the Project grappled with was how to
deal with those cases that arose under the Clinton Administration
but carried over into the current Bush Administration. The Project
also had to deal with cases that presented multiple issues, cases
later overturned on appeal, cases presenting purely procedural issues,
and cases in which the court's decision was seemingly at odds with
the categorization of the government's argument.
The net result of Defenders of Wildlife's Judicial
Accountability Project is a series of articles that track the arguments
made by federal agencies in federal court litigation as well as
the judiciary's responses to those arguments since the Bush Administration
took office on January 21, 2001:
William Snape III & John M. Carter II, Weakening
the National Environmental Policy Act: How the Bush Administration
Uses the Judicial System to Weaken Environmental Protections,
33 ELR 10682 (Sept. 2003).
John M. Carter et al., Cutting Science, Ecology
and Transparency out of National Forest Management: How the Bush
Administration Uses the Judicial System to Weaken Environmental
Laws, 33 ELR 10959 (Dec. 2003).
Sabotaging the Endangered Species Act (draft).
The first two articles on NEPA and NFMA have been
published by ELR. The ESA report is undergoing a peer review process
and is available in draft form on Defenders of Wildlife's website,
http://www.defenders.org.
Download
the Judicial Accountability Database
Database Overview and Key
Note--the Project Database has been compiled in Microsoft® Access
format. (Microsoft® Access 2000 (9.0.3821 SR-1)). If you are
attempting to view this database from an online link it may be necessary
for you to download a current version of Access.
At the inception of the Project, an initial review
indicated around 1,200 federal cases that presented possible environmental
issues. A database approach was desirable in order to provide accurate
and detailed analysis of this potentially large body of cases. The
idea was to use the database to record data for each case reviewed
in a way that allowed objective analysis of trends throughout the
entire body of cases that might not be apparent through the analysis
of individual cases.
Separate databases were created for cases falling
into three specific areas of environmental law: The NEPA; Forest
law, and the ESA. For each of the three databases, the process for
incorporating applicable cases was similar. Broad electronic searches
on both Westlaw and Lexis were used to determine all
potentially applicable cases. An initial review was conducted to
eliminate clearly inapplicable cases and to get a sense of the types
of issues being litigated under each of the three areas reviewed.
Based on the initial review, a substantial number
of cases were eliminated as not germane to the review. The primary
reason for eliminating a case at this stage was that although the
case contained one or more key terms included in the electronic
searches it presented no issues with any possible bearing on the
field of law under review. Cases passing this first rough filter
were then carefully screened for inclusion in the corresponding
case review database. The initial review was also helpful in the
refinement of the database to incorporate key issues specific to
each field of law.
Certain cases were disqualified from review at the
second stage for three primary reasons.
1. Clinton Inherited Cases
A number of otherwise relevant cases originated under the Clinton
Administration and carried over into the current Bush Administration.
There were even some cases that originated under George H.W. Bush
Administration. The methodology for determining which arguments
were counted as attributable to the current Bush administration
from these overlapping cases focused on the motion that proved dispositive
of a particular case. Regardless of when the case was filed, if
the current Bush Administration filed the particular motion or a
substantial revision of the motion upon which the court ruled in
a particular decision, it was included in the database. If the Bush
Administration made no arguments in a case that was commenced under
the Clinton Administration, the case was eliminated from the database
even if the case was decided during the review period covered by
a specific report.
2. Subsequent Appellate
Decisions
A number of decided cases in which the Bush Administration presented
arguments were subsequently the subject of appeals. In cases where
the appellate court overturned the lower court, only the appellate
case was reflected in the database in order to avoid the confounding
effect of having a case reported with two different outcomes.
3. Judiciability Arguments
The federal government made a number of judiciability arguments
in the surveyed cases. The judiciability arguments that were counted
for the purposes of this study were judiciability arguments specifically
pertaining to the area of law at issue and expressly addressed in
the court's decision. General judiciability arguments like standing,
procedural motions, and attorney's fees cases were excluded.
This substantive review provided a more rigorous filter
for database applicability and for the correct categorization of
legal arguments and results. The forms for the databases contain
both common fields that are identical in each database and unique
fields that are specific to the area of law reviewed.
Case Review Database Common
Fields
The following information was compiled for each database:
| DB#: |
database tracking number used for
internal review of cases in the database. |
| Cap: |
the caption of the case. |
| Citation: |
the citation to the court's decision in a case. |
| Court: |
the court that decided the instant case. |
| Date: |
the date of the decision. |
| Note: |
indicates that a narrative summary of the case
was included in a corresponding report. |
| Docket: |
a court generated reference number for a given
case--this was useful in tracking down case information through
the federal docket system. |
| *Statute: |
some cases raised issues under more than one
statute. This field recorded the statutes at issue in the case. |
| *Agency: |
this field recorded which agency or agencies
were involved in the litigation. |
| *Ent'l P? |
this field recorded whether the plaintiff was
an environmental litigant. |
| *Ind P: |
this field recorded whether the plaintiff was
an industry litigant. |
| Summary: |
a narrative summary and overview of the case. |
| Posture |
a narrative description of how the case came
to the reviewing court. |
| Issues: |
a narrative description of the specific issues
raised by the litigants in the case. |
| Gov't Argt: |
a narrative summary of what arguments the government
made in the case. |
| *Consistent w/
Precedent?: |
was the government's argument in the case consistent
with applicable environmental law and precedent? |
| *Contrary to Precedent?: |
was the government's argument in the case contrary
to applicable environmental law and precedent? |
| Holding: |
narrative description of the basis for the court's
decision. |
| Quote: |
the specific language used by the court to describe
the government's arguments. |
| *Gov't Win?: |
did the court accept the argument presented by
the government? |
| Outcome: |
what remedy did the court grant in the case? |
| Judge(s): |
the names of the judge(s) who decided a case. |
| Nom By?: |
the president who appointed the corresponding
judge. |
| *Dem?: |
whether the court was a Democrat-appointed district
court or a Democrat-appointed majority circuit court panel. |
| *Rep?: |
whether the court was Republican-appointed district
court or Republican-appointed majority circuit court panel. |
| Overturned?: |
was the decision overturned on appeal? |
| App Cite: |
citation to the appellate decision. |
| Implicated issues: |
these were the issues specific to each area of
law that the initial case review indicated were important. For
each area of law, it became apparent that the government was
actively litigating and arguing certain core issues. Tracking
these unique issues in addition to the common fields allowed
the project to develop a more nuanced picture of developing
trends. |
Forest Report Database Unique Fields
| *NFMA
Plan Regs: |
whether the case presented issues
related to NFMA's forest planning regulations, the requirement
that all actions taken on a national forest be consistent with
the applicable forest plan, or presented a violation of a forest
plan. |
| *Ohio Forestry: |
whether the government attempted to use an Ohio
Forestry argument that general management plans are not
reviewable without some site specific action or injury to avoid
judicial review of an area wide plan. |
| *Viability Regs: |
whether the government's argument implicated
the NFMA requirement that national forests be maintained to
promote the viability of indigenous old growth dependant species. |
| *Roads and Trans: |
whether the case involved construction
or removal of roads or the approval of motorized access on national
forests. |
| *Roadless Rule: |
whether the case implicated issues related to
the requirements of the roadless area conservation rule. |
| *Motorized Rec: |
whether the case implicated issues related to
the use of national forests for motorized recreation. |
| *Wilderness: |
whether the case implicated the maintenance of
wilderness areas. |
| *Fire: |
whether the government attempted to accomplish
its goals without sufficient environmental review by claiming
that it was really attempting to prevent forest fires. |
| *Avoiding NEPA: |
whether the government was attempting to avoid
NEPA requirements. |
| *Avoiding ARA: |
whether the Forest Service was attempting to
avoid review of its actions under the ARA. |
| *Regional Plans: |
|
| *ACS Consis: |
Aquatic Conservation Strategy - whether the government
was attempting to evade the requirement that it consider consistency
with the ACS when reviewing its plans or site specific actions. |
| *NWFP Settlements: |
whether the case addressed one of the several
instances in which the government agreed to eliminate requirements
under the North West Forest Plan through settlement agreements
with industry plaintiffs. |
| *Water Rights: |
whether the case implicated water rights or water
appropriations issues. |
| *CWA TMDL: |
whether the case presented Clean Water Act permit
issues or whether the preparation of a TMDL was implicated. |
| *ESA: |
whether the case presented concurrent issues
under the ESA. |
ESA Report Database Unique Fields
| *Sect
4 |
did the case present issues related
to the following provisions under §4 of the ESA? |
| *Listing: |
did the case present issues related to species
listing under §4 of the ESA? |
| *Crit Hab: |
did the case present issues related to the designation
of critical habitat under §4 of the ESA? |
| *4 Recovery: |
did the case present issues related to the recovery
plan requirement under §4 of the ESA? |
| *Sect 7: |
did the case present issues related to federal
agency obligations under §7 of the ESA? |
| *BA: |
was the sufficiency of a biological assessment
or an informal consultation at issue in the case? |
| *BiO: |
was the sufficiency of a biological opinion or
a formal consultation at issue in the case? |
| *(a)(1): |
was the §7(a)(1) duty of federal agencies
to further the goals of the ESA implicated in the case? |
| *(d) |
was the §7(d) obligation of federal agencies
not to commit resources while in consultation implicated in
the case? |
| *Sect 10: |
did the case present issues related to the following
provisions under §10 of the ESA? |
| *Incidental Take: |
was the issuance of a §10 incidental take
permit an issue in the case? |
| *Consv'n Plans: |
was the preparation or approval of a conservation
plan an issue in the case? |
| *Sect 9 Take: |
did the case involve the illegal take of an endangered
species as prohibited under §9 of the ESA? |
Case Categorization
Each of the databases included information categorizing the federal
government's argument as "consistent with" accepted precedent
and law; or "contrary to" accepted precedent and law.
The forest law database also contained information categorizing
the government's argument as "positive" in those cases
in which the government made arguments that tended to promote the
environmental interests underlying forest law. While this categorization
is certainly the most controversial aspect of the Project, it also
added a tremendous level of detail. Making this determination was
central to this study, and the task was undertaken carefully and
conservatively.
A. Contrary to Accepted
Precedent and Law
The government's arguments were categorized as contrary to accepted
precedent and law where substantial evidence exists, either within
the government's arguments or the court's interpretation and reiteration
of those arguments, that the government advocated a position avoiding
or eroding environmental law and accepted precedent. Cases falling
into this category include: (a) cases in which where the government
attempted to avoid judicial review of its failure to comply with
applicable substantive environmental law or regulatory consistency
requirements; (b) cases in which the court rejected the government's
argument that it was simply not required to comply with some provision
of environmental law or regulations; and (c) cases in which the
government sought to defend decisions or interpretations of environmental
law found defective or incomplete by the reviewing court.
B. Consistent with Accepted
Precedent and Law
The government's arguments were categorized as "Consistent"
where the evidence indicated the government advocated a position
not tending to erode environmental law or accepted precedent. Cases
falling into this category include: (a) those in which the government
argued, and the reviewing court agreed, that it had complied with
all legal requirements and based its defense on the adequacy of
the facts contained in the administrative record; and (b) cases
in which the government defended its actions or decisions against
industry or "wise use" petitioners asserting interests
hostile to the goals and intent of applicable environmental laws.
Although the Project has drawn some criticism for
bias and lack of objectivity, for the most part these categorizations
were empirically objective. In making these determinations, the
Project relied heavily on two presumptions: (1) where a reviewing
court agreed with the government's argument, the argument was presumed
consistent with applicable law and precedent; and (2), where a reviewing
court rejected the government's argument, the argument was presumed
contrary to applicable law and precedent. In the 40 or so cases
across the three databases in which the Project recorded a categorization
at odds with these presumptions (i.e., in which the database
categorized an argument as "contrary" despite the fact
that the court agreed with the argument), fully a third of those
cases were overturned on appeal within the study period.
May, 2004
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