Jun 302011

Ay yi yi, perhaps it's finally time to fill in some of these empty pages.   Especially as Keith Rizzardi's reliable ESA Blawg is experiencing growing pains -- as in, growing children who need attention.

The Supreme Court headed out of muggy D.C. earlier this week, but not before granting a writ of certiorari in a wetlands enforcement case. Richard Frank offers a succinct summary of the matter at Legal Planet:

In today’s order granting review, the justices indicated they would resolve two issues: 1) whether the Sacketts may seek pre-enforcement judicial review of the EPA compliance order under the APA; and 2) if not, whether the absence of such recourse to the courts violates their right to constitutional due process.

Sackett is a major case, one with implications for environmental enforcement that extend far beyond the CWA to many other federal environmental laws as well. And the potential consequences of a ruling in the Sacketts’ favor would also affect state environmental agencies, to whom the federal government has frequently delegated permitting and enforcement obligations under numerous federal environmental statutes.

Fellow Legal Planet blogger Holly Doremus followed up with a post (also on Tuesday) that said the case as it comes before the court "is not exactly a Clean Water Act case. It’s more general than that."

Doremus noted that "in its order taking up the case," the court said it "would review whether the Administrative Procedure Act, the general background law governing federal agency actions, provides for pre-enforcement review of the order, and if not whether the lack of reviewability violates Due Process. Although the case isn’t exactly about [CWA] § 404, though, I think the court’s decision to hear it can’t be divorced from that context. Several members of the court are highly suspicious of wetlands protection."

Here's the text of the court's order:

"The petition for a writ of certiorari is granted limited to the following questions: 1. May petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?"

The venerable Lyle Denniston at SCOTUSblog summed up the grant this way:

In the environmental case added to the decision docket, Sackett, et al., v. EPA, et al. (10-1062), a couple had been found to have filled in a wetland without a federal permit, when they graded a small lot on which they planned to build a house in a residential subdivision near Priest Lake, Idaho.  The couple was ordered by EPA to fill in the lot, replace lost vegetation, and monitor the fenced-off site for three years.  In their petition to the Courts, the Sacketts contended that they had no chance to contest the compliance order, and asked the Court to rule that they had a right to test the order in federal court.   The Justice Department opposed review of their case, noting that every federal Circuit Court to face the issue had ruled against allowing pre-enforcement lawsuits, limiting enforcement to cases in which EPA chose to sue.  The Court granted review nevertheless.

In granting review, the Court said it would resolve two questions: whether the couple could seek pre-enforcement review in court of the EPA order under the Administrative Procedures [It's singular, Lyle] Act, and, if they could not, whether that would violate their right to constitutional due process.

As an aside, the court also granted cert in Sandy Williams v. Illinois (10-8505). I'm no Supreme Court expert, but it's not often that a petitioner proceeding  in forma pauperis gets his/her petition granted.

Sackett links

SCOTUSblog's link to Sackett  cert briefs

SCOTUSBlog's Sackett page

Pacific Legal Foundation news release (6/28/11)

Ninth Circuit decision

ESWR Rapanos page

NY Times/Greenwire coverage

Links from SCOTUSBlog;

Amicus Briefs in Support of the Petitioners

Amicus Briefs in Support of Neither Party

Certiorari-stage documents

  • Petitioners' reply (unavailable)
  • Amicus brief of the Center for Constitutional Jurisprudence et al. (unavailable)
  • Amicus brief of the American Civil Rights Union (unavailable)
  • Amicus brief of the National Association of Home Builders et al. (unavailable)



Jun 142011

Before we get to the (ludicrous) assertion in a Slate/Washington Post article that the preservation of biodiversity in Colorado, Kansas, Nebraska, Oklahoma, South Dakota and Texas (aka Tornado Alley) is really not worth worrying about, we here at ESWR would like to congratulate the Dallas Mavericks on their victory in the NBA Finals.

Dirk Nowitzki, European adding geo-diversity to mostly native roster

Mexican long-nosed bat, endangered in Texas since 1988

The win was satisfying on many levels, but my biggest thrill did not come in seeing LeBron James lose.  Despite what he may want to believe, James is not universally hated. Sure, in many quarters he is -- especially Cleveland. Me, I thought what he did last year was crass and immature, but given the hype associated with everything he does (and de rigeur for pro sports), it wasn't surprising. Pro athletes -- and even regular humans -- do stupid stuff all the time. All James has to do is win a championship or two and act somewhat graciously and all will be forgotten.

No, the best part of seeing the Mavs win was living vicariously through Dirk Nowitzki as he led them to their first title. Nowitzki -- can I call him the Towering Teuton? Depends on where Wurzburg is, I suppose. Where's my Dad when I need him? -- was mostly marvelous throughout the playoffs, never more so than against Oklahoma City and Miami. The whole "Eurosoft" label has been buried, thank goodness, the Big D can celebrate hoops, Cuban was gracious -- what's not to like?

But as is almost always the case with championship teams, this was a TEAM. For three quarters in Game 6, Nowitzki had shot woefully, but Jason Terry was electrifying, DeShawn Stevenson hit a couple of big threes, and Dirk's teammates lifted him up and kept feeding him.

And what do you know, in the 4th the big guy came alive, dropping in rainbows and taking a feed for a lefty layup that sealed the deal. Meanwhile, Dwyane Wade was dribbling the ball off his foot and King James was trying to save a ball even though his sneak was a good three or four Bill Laimbeer steps out of bounds. By the time the Heat fell behind by double digits with just a few minutes to go, it was over. Mark Jackson -- who seemed to utter five words for every one emitted by Jeff Van Gundy -- had it right: The Heat were feeling the pressure. What did Erik Spoelstra say afterwards to the unflappable and stylish Doris Burke? It was along the lines of, "None of us expected this to happen." Well, no, you didn't, but didn't you think it was a possibility? You can't expect a championship to fall in your lap, even when you're up 2-1. You have to earn it, all the way to the end of every game. So, to Dirk, Jason Terry and Jason Kidd, Shawn Marion, Tyson Chandler, ex-Wizard DeShawn Stevenson, J.J. Barea, Brian Cardinal (Boilers!). Peja Stojakovic, Brendan Haywood (ex-Wiz), Caron Butler (ex-Wiz) on the bench, and coach Rick Carlisle, I say, way to go!

OK, now on to Tornado Alley. In an article published in Slate and then in the Washington Post, author Brian Palmer asserted

Fortunately, "tornado alley" in the United States, where one-quarter of the country's largest tornadoes strike, isn't exactly a coral reef. It includes parts of Colorado, Kansas, Nebraska, Oklahoma, South Dakota, and Texas. Sure, there are 16 endangered species living in those states—such as the adorably named robust cottontail rabbit—but the area is considered a low priority by conservationists. In fact, Conservation International has identified only one "biodiversity hotspot" in the entire United States, the California Floristic Province along the West Coast. (emphasis added)

I read that and said, "What? That doesn't seem right."

Then I did what Palmer obviously didn't do. I looked at the Fish and Wildlife Service's listing information. FWS has listed 85 animal species in those states, most in Texas (and many, admittedly, located in caves that are probably out of harm's way).  So, not 16, but 85 -- and I'm not even counting the plants, which puts the number above 100. Oh, and I did not find the robust cottontail rabbit among them, so I don't know what he's talking about there. (Wikipedia, which I am not saying is unimpeachable, nonetheless says flatly, "Despite its rarity, currently no governmental agency provides protection or listing for this species.")

But is biodiversity just about counting the number of endangered species? The American prairie, which overlaps the area examined by Palmer, has been a conservation priority for decades, because so little is left of the native grasses that once covered the middle of the continent.

It just so happens that a couple of days after I read Palmer's article, I came across a few bundles of National Geographics by the side of the road. Never one to let free knowledge get moldy, I tossed them into my car. As luck would have it, one of the reclaimed NatGeo's was the October 1993 issue, which included an article entitled "The American Prairie." In it, author and biologist Douglas Chadwick called the pre-settlement grasslands "a biological powerhouse." He also talked about biodiversity:

Natural communities are made of much more than the large and familiar creatures that attract most people's interest. Recognizing that obscure life-forms often prove the most valuable to research, medicine, and the health of ecosystems, modern conservation biologists emphasize the need to preserve biological diversity. Termed biodiversity for short, it is defined as the full variety of life, large and small alike, and all the processes and interactions that sustain it. This is where America's long-overlooked prairies have lately drawn all kinds of attention. For even though they lie broken into pieces, those fragments still hold a whopping share of the continent's wealth of species.

No, it's not a coral reef. (For one thing, it's above water.) But that type of comparison is both simplistic and meaningless.  The native grasses of the Plains are critically endangered, no matter whether they are home to 16 endangered species or a thousand. Only about 2 percent of the original ecosystem has been preserved. The Spring Creek Prairie Audubon Center says on its website that "less than 2 percent of the world’s original tallgrass prairie remains. Most of such prairie has become fertile farmland due to its agricultural potential. This distinctive land of ours is North America’s most threatened ecosystem." (again, emphasis added.),,,,

I have posted the question below on Slate's site, and sent emails to the Green Lantern column, Palmer himself, and the Washington Post ombudsman. I'll let you know if anyone responds. [Personal commentary: Don't hold your breath.]

Hi there --

Can you let me know what source you used for the figure of 16 endangered species in the states of Colorado, Kansas, Nebraska, Oklahoma, South Dakota and Texas? According to the Fish and Wildlife Service, the number is much higher.

In addition, your dismissal of Tornado Alley and, by extension, the states mentioned above, as "not exactly a coral reef" and "considered a low priority by conservationists" begs credulity.  The biodiversity of the Plains is well documented. Can you name any conservation groups that focus on wild areas in the U.S. that have stated clearly that this area is a "low priority?" (Conservation International, whose bailiwick is the entire world, isn't the best example)


Steve Davies
Endangered Species & Wetlands Report

Update, June 16: Still nothing from Palmer or Slate (or the Post). In looking around on the Web, however, I found some recent evidence that calls into question the whole premise of the piece. For example, Mother Earth News reported June 1 on the impact of tornadoes in the South and Midwest, saying that "asbestos appears to be the biggest concern, especially in neighborhoods with older homes, schools, and commercial buildings. The massive storms ripped asbestos insulation out of walls and smashed asbestos shingles, tiles, and other building materials into dust."

June 17: Two of the "action alerts" on the National Wildlife Federation's web site deal with Plains species. "The increasing conversion of native grasslands to corn fields in America's Great Plains has caused widespread habitat loss for the Western Meadowlark. Urge your members of Congress to end costly handouts for corn energy production," NWF says here.

And according to a report posted on NWF's website:

Healthy prairies support a wide diversity of life and habitats. Many threatened, declining and endangered species live on the prairies and conserving and restoring their prairie habitat is critical to recovery. Studies show habitat loss or alteration was a factor for approximately 95 percent of the species listed as endangered or threatened in the U.S. (Flather, et al., 1994).

Here's the start of the 20-page report:

A sweeping sea of grass, America’s grasslands once stretched from Canada, south into Texas and Mexico, east into Illinois and west to the foot of the Rocky Mountains. The lands were a rich tapestry of grasses, flowers, shrubs and wildlife intricately woven together, comprising one of the most resilient and productive ecosystems on the planet. Buffalo, prairie grouse and black-tailed prairie dogs all thrived on the plentiful native grasses growing in the rich prairie soil. North America’s grasslands are the essence of the Great Plains, its history, its culture and its wildlife. Yet, our prairie grasslands may soon only exist in faded photographs and memories. Perhaps no other North American ecosystem has been ignored, overlooked and mismanaged more often than our prairie grasslands.

It doesn't exactly sound like it's a low priority, does it?  In specific, the report is about prairie conservation and restoration on the Cheyenne River Reservation in South Dakota, one of the Tornado Alley states "considered a low priority by conservationists," according to the Green Lantern (not the movie, the Slate column, which frankly, I'm surprised hasn't encountered copyright difficulties, especially with the appearance of the flick.)

Ryan Reynolds as the Green Lantern

Ryan Reynolds' outfit goes with our website