Pioneering Environmental Law: Remembering David Sive (1922-2014)

Posted on May 2, 2014 by Nicholas Robinson

Before environmental law existed, David Sive knew that the law could protect forests and fields, abate pollution of air and water, and restore the quality that humans expected from their ambient environments.  He fashioned legal arguments and remedies where others saw none.  His commitment to building a field of environmental law is exemplary, not just historically, but because we shall all need to emulate his approach as we cope with the legal challenges accompanying the disruptions accompanying climate change.

David Sive learned to love nature by hiking and rambling from parks in New York City to the wilderness of the Catskill and Adirondack Mountains.  He carried Thoreau’s Walden into battle in World War II in Europe, and read William Wordsworth and the Lake poets while recuperating from wounds in hospitals in England.  He had a mature concept of the ethics of nature long before he began to practice environmental law.

His early cases were defensive.  He defended Central Park in Manhattan from the incursion of a restaurant. He rallied the Sierra Club to support a motley citizens’ movement that sought to protect Storm King Mountain from becoming a massive site for generating hydro-electricity on the Hudson River.  Scenic Hudson Preservation Conference v. Federal Power Commission [FPC] (2d Cir. 1965), would become the bell-weather decision that inaugurated contemporary environmental law.  The case was based on the multiple use concepts of the Progressive Era’s Federal Power Act.  The FPC (now FERC), had ignored all multiple uses but the one Con Edison advanced.  When the Court of Appeals for the Second Circuit held that citizens had the right to judicial review to require the FPC to study alternative ways to obtain electricity, as well as competing uses for the site, the court laid the basis for what would become Section 102(2)(c) of the National Environmental Policy Act (NEPA).

When Consolidated Edison Company decided to build a huge hydroelectric power plant on Storm King, the northern portal to the great fiord of the Hudson River Highlands, citizens and local governments were appalled.  This was no “NIMBY” response.  Con Ed had forgotten that these fabled Highlands inspired the Hudson River School of landscape painting.  This artistic rendering of nature in turn inspired the birth of America’s conservation movement of the late 19th century.  The Hudson also instrumental to the historic birth of this nation; here the patriots’ control of the Highlands had kept the British from uniting their forces, and here soldiers from across the colonies assembled above Storm King for their final encampment as George Washington demobilized his victorious Army.  The Army’s West Point Military Academy overlooks the River and Storm King.  

David Sive and Alfred Forsythe formed the Atlantic Chapter in the early 1960s, despite heated opposition from Californians who worried the Club would be stretched too thin by allowing a chapter on the eastern seaboard.  David Sive chaired the Chapter, whose Conservation Committee debated issues from Maine to Florida.  He represented the Sierra Club, pro bono, in its intervention in the Storm King case, and other citizens brought their worries about misguided government projects or decisions to him. 

David Sive represented similar grassroots community interests in Citizens Committee for the Hudson Valley v. Volpe (SDNY 1969), affirmed (2d Cir. 1970).  Transportation Secretary Volpe had approved siting a super-highway in the Hudson River adjacent to the shore in Tarrytown and Sleepy Hollow, to accommodate Governor Nelson Rockefeller’s proposal to connect his Hudson estate to the nearby Tappan Zee Bridge.  Without the benefit of NEPA or any other environmental statutes, which would be enacted beginning in the 1970s, and relying upon a slender but critical provision of a late 19th century navigation law, after a full trial in the US District Court for the Southern District of New York, David Sive prevailed against the State and federal defendants.  He won major victories on procedure, granting standing to sue, and on substance, a ruling that the government acted ultra vires.  David Sive saved the beaches, parks and marinas of the Hudson shore.

Public interest litigation to safeguard the environment was born in these cases.  Public outrage about pollution and degradation of nature was widespread.  In September 1969, the Conservation Foundation convened a conference on “Law and the Environment,” at Airlie House near Warrenton, Virginia.  David Sive was prominent among participants.  His essential argument was that “environmental law” needed to exist. 

On December 1, 1970, Congress enacted the NEPA, creating the world’s first Environmental Impact Assessment procedures and establishing the President’s Council on Environmental Quality (CEQ).  The CEQ named a Legal Advisory Committee to recommend how agencies should implement NEPA chaired by US Attorney Whitney North Seymour, Jr. (SDNY).  This Committee persuaded CEQ to issue its NEPA “guidelines” on the recommendation of this Committee.  That year launched the “golden age” of NEPA litigation.  Courts everywhere began to hear citizen suits to protect the environment.

David Sive went on to represent citizens in several NEPA cases, winning rulings of first impression.  In 1984, he reorganized his law firm, Sive Paget & Riesel, to specialize in the practice of environmental law.  From the 1970s forward, NEPA allowed proactive suits, no longer the primarily defensive ones of the 1960s. “Citizen suits” were authorized in the Clean Air Act, Clean Water Act and other statutes. 

David Sive knew that without widespread support among the bar and public, these pioneering legal measures might not suffice.  He became a founder of the Natural Resources Defense Council (NRDC), which became one of the nation’s pre-eminent champions of public environmental rights before the courts.  To continue the Airlie House conference precedent, he institutionalized the established professional study of environmental law, as a discipline, through creation of the Environmental Law Institute (ELI).  With ALI-ABA (now ALI-CLE) he launched nationwide continuing legal education courses to education thousands of lawyers in environmental law, a field that did not exist when they attended law school.  He devoted an active decade to teaching law students in environmental law, as a professor at Pace Law School in New York.

This month, the Intergovernmental Panel on Climate Change (IPCC) released the second part of its Fifth Assessment Report.  The IPCC summaries of peer-reviewed scientific investigation suggest that law will confront problems even more challenging than those that David Sive addressed.  New legal theories and remedial initiatives will be needed that do not exist today.  The wisdom of ecologist Aldo Leopold can inform the next generation.  Globally, others carry on David Sive’s role, such Attorney Tony Oposa in the Philippines or M. C. Mehta in India.  The law can cope with rising sea levels, adaptation to new rainfall patterns, and other indices of climate change, but it will take individual commitment to think deeply about environmental justice in order to muster the courage to think and act tomorrow as David Sive did yesterday.

Preserving Conservation Gains – The Issue of Exit

Posted on March 18, 2013 by Jonathan Z. Cannon

Governmental and non-governmental actors in the conservation field increasingly face the issue of “exit” from initiatives that they have undertaken.  This is good news, because the issue of exit typically arises when their interventions have achieved their conservation goals and they respond to the need to register wins and move scarce regulatory, technical, and financial resources to new problems.  For example, upon recovery of a species listed as threatened or endangered under the Endangered Species Act, the Fish and Wildlife Service will consider delisting the species, thus removing the strict legal protections afforded by the Act.  Similarly, non-governmental organizations that have intervened to ensure or provide funding or expert assistance for protection of species or ecosystems will want to move on when their goals have been met.

But success leaves a tough question: what happens when they withdraw?  Will their successes persist, or will their withdrawal lead to the same failure that brought them to intervene in the first place?  What factors affect the “stickiness” of successes achieved through governmental or philanthropic involvement?  The challenge is to ensure that conservation initiatives generate durable institutional arrangements that continue to yield success after the initial movers have left or reduced their presence.  And the challenge is pervasive.  For example, it is estimated that 80% of listed species are “conservation-reliant,” requiring ongoing conservation effort after delisting because threats to the species’ existence cannot be wholly eliminated. 

Conservation practitioners and scholars are beginning to tackle this issue in earnest and are coming together to discuss it in forums such as a recent conference at the University of Virginia on Making Conservation Sustainable: Institutional Design and the Natural Environment.  The work of designing sustainable conservation arrangements is inherently interdisciplinary, involving lawyers, economists and finance experts, social psychologists, political scientists, and ecologists.  It is further complicated by the wide variety of physical, biological, economic, political, and social settings in which conservation occurs.  Experts agree that there is no one-size-fits-all solution, with well-tailored arrangements likely to include a mix of approaches.  For example, some level of residual government involvement may be combined with collaborative community-based institutions, such as “friends” groups or landowner cooperatives.  The long-term success of these institutions will require that they be compatible with the history, economy, and values of the affected communities. 

Confronting the challenges of exit may lead to improved understanding of the potential of private and public-private undertakings to provide long-term solutions to conservation challenges.  And that understanding could help usher in a new generation of environmental law and policy.

Will Sage Grouse Conservation Efforts Fly?

Posted on March 15, 2013 by Mike Brennan

The clock is ticking on the U.S. Fish & Wildlife Service’s 2015 deadline to decide whether to list the Greater sage grouse under the Endangered Species Act.  In the states where the grouse still exists - Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Colorado, Utah and the Dakotas - ambitious efforts seek to protect the species and make an ESA listing unnecessary.  Wyoming – uniquely blessed with some 54% of the remaining sage grouse in the world, spread across 32 million acres of sagebrush habitat – is both ground zero for and the leader in a landscape-scale experiment in collaborative wildlife conservation.

This saga began in January 2005, when FWS decided not to list the species.  Since then, sage grouse lawsuits have flown fast and furiously.  Litigation was highly predictable, given the history of the ESA, the magnitude of the impacts associated with a potential listing, and the setting; conflict regarding wildlife conservation needs, goals and opportunities runs deep in the West, particularly in the “Sagebrush Sea,” where distrust of the federal government and its institutions often seems learned from birth.  The most remarkable aspect of the sage grouse saga is that history and location notwithstanding, it has brought together federal, state and private sector interests across much of the western United States who seek to conserve the species and thereby make listing unnecessary.

Beginning in 2007, the landscape of sage-grouse conservation began to change, led by the State of Wyoming and its “Core Area Policy,” which was designed to identify, maintain, and enhance sage-grouse habitat and populations within the species’ core habitat areas.  The pace quickened in 2011, when Oregon followed with a similar core-area approach.  Wyoming Governor Matt Mead and Secretary of the Interior Ken Salazar hosted a sage-grouse conservation meeting in Cheyenne involving federal and state representatives, that. focused on the development of a coordinated, landscape-level conservation strategy, seeking a collaborative conservation effort at the state, federal and local levels.

Following the Cheyenne summit, the states of Utah, Idaho and Nevada initiated new efforts to develop their own sage grouse management plans, while various federal agencies are vigorously pursuing their own sage grouse conservation efforts.  The Bureau of Land Management and the U.S. Forest Service are revising their management plans in Wyoming, Colorado, North and South Dakota, Utah, Montana, Idaho, Nevada, Oregon, and California to incorporate consistent sage grouse conservation objectives and measures.  The Natural Resource Conservation Service’s Sage-Grouse Initiative is focusing on conservation grant and technical assistance programs to improve sage-grouse habitat and rangelands productivity.  The Department of Agriculture announced an additional $18.2 million Grassland Reserve program in 2011 to help ranchers in Wyoming, Idaho and Utah conserve critical sage-grouse habitats.

 And on March 8, 2012, Agriculture Secretary Vilsack and Secretary of the Interior Salazar announced the establishment of the Working Lands for Wildlife partnership program, a $33 million program to conserve sage grouse and six other species.

In addition to state and federal conservation efforts, ranching, mining, oil and gas and other interests are developing Candidate Conservation Agreements with Assurances (CCAAs) to provide for sage grouse conservation on private and other nonfederal lands in Wyoming, Idaho, and elsewhere.  FWS has recently published a draft sage grouse CCAA to be available for Wyoming landowners, and numerous other local efforts are ongoing.

Whether these and other efforts can make an ESA listing unnecessary only time will tell.  Sage grouse still occupy some 160 million acres of land, making this a landscape conservation effort of heroic scale.  Skeptics, and history, would bet against it.  But if the state, federal, and private sector efforts are successful, it will stand as an historical moment in wildlife conservation, and as validation of the West’s author and historian laureate, Wallace Stegner, who wrote:

“This is the native home of hope.  When it fully learns that cooperation, not rugged individualism, is the pattern that most characterizes and preserves it, then it will have achieved itself and outlived its origin.  Then it has a chance to create a society to match its scenery.”
Wallace Stegner, The Sound of Mountain Water 38 (1980).

STILL ROADLESS AFTER ALL THESE YEARS

Posted on May 22, 2012 by Todd D. True

In the waning days of the Clinton administration, the U.S. Forest Service adopted a regulation to protect more than 50 million acres of national forest roadless lands, i.e., public lands still undeveloped and largely untouched. Called the Roadless Area Conservation Rule [36 C.F.R. § 294] or Roadless Rule (and sometimes called the RACR), it was soon off to the races with no fewer than nine lawsuits by development interests and western states seeking to invalidate it.

First, at the request of the State of Idaho and others, a district court in Idaho issued a preliminary injunction against the Roadless Rule  – without opposition from the Forest Service, by then under different management. Conservation interests appealed and the Ninth Circuit reversed and vacated the injunction, allowing the Roadless Rule to take effect.

A district judge in Wyoming then invalidated the Roadless Rule and enjoined its implementation nationwide in a case filed by the State of Wyoming. An appeal by conservation interests to the Tenth Circuit, again with the Forest Service firmly on the sidelines, ensued. In 2005, before the appeal was resolved, the Forest Service itself repealed the Roadless Rule and replaced it with a state petition process, leading the Tenth Circuit to vacate the district court decision and dismiss the pending appeal as moot.

Conservation groups and the states of California, Oregon, Washington and New Mexico challenged the repeal.  In 2006, a district court in California overturned the repeal and reinstated the Roadless Rule.  The Ninth Circuit subsequently affirmed.

Back to Wyoming, where the State of Wyoming renewed its complaint and in 2008 the district court duly re-issued its earlier decision enjoining the Roadless Rule. Conservation groups again appealed to the Tenth Circuit, and in 2011 the Circuit reversed the district court’s decision and vacated the injunction. The RACR ruled again.

Last week, after the Tenth Circuit denied rehearing en banc, Wyoming petitioned the Supreme Court to review the Tenth Circuit’s decision.  The decision is a unanimous, one hundred-plus page review of Wyoming’s claims under NEPA, the National Forest Management Act, and the Wilderness Act -- worth a read just as a primer on the current state of these laws.  In the meantime, the Forest Service is now off the sideline and, along with conservation interests, expected to oppose Wyoming’s cert. petition.  The Supreme Court should act on the petition by next Fall.

Unless you live in Hawaii, you’re probably no more than a few hours’ drive from the nearest national forest roadless area (yes, there are roadless areas in the White Mountains, Appalachians and Ozarks as well as the western states).  Visit one and see what the controversy is all about.  Or maybe you already know because you live in one of the hundreds of communities around the country that gets its drinking water from a nearby roadless area – so you enjoy these lands every time you turn on your tap.  Any way you use and enjoy them, the more than 50 million acres of federal public land the Roadless Rule protects are still roadless after all these years. 

(Full disclosure – Earthjustice represented the conservation interests in the cases discussed above.)