Our Founding Fathers created three branches of government as a system of checks and balances. Waterkeeper Alliance and U.S. Waterkeeper groups often turn to the judicial branch when state or federal agencies make decisions that violate environmental laws. Taking legal action when the government makes decisions that will hurt waterways is a fundamental part of what we do. The courts often act as equalizers—when powerful polluters use their money and influence to sway agency decisions in their favor, taking legal action is a way to for the public to hold the agency accountable and force them to follow the law. And in some cases, the public can bring enforcement actions against polluters when the government fails to act.
Powerful polluters know that the courts are a powerful tool for the public to protect itself which is why they lobby for legislative provisions that restrict access to the courts. These provisions can take many forms.
One raises the financial stakes so high that an average person or non-profit risks financial ruin by bringing a case. Another shortens the time-frame for when a legal action can be brought, giving the public limited time to review and organize a challenge to a decision. Some provisions force challenges to go through secretive arbitration rather than through the courts.
There is also a more blatant route—simply banning judicial review for certain decisions. This is what a rider added to the recently released Department of Interior 2019 budget bill would do.
Section 437 of the bill attempts to block judicial review of all agency decisions regarding the environmental review of a proposed water transfer project in California known as the “delta tunnels project,” or “California WaterFix.” If this rider becomes law, it could prevent the public and nonprofits from challenging the government’s review of the environmental impacts of the project, even if that review is flagrantly flawed.
“The twin tunnels could go down in history as the largest, most expensive infrastructure project ever built in California, yet many of the project approvals are being done through backroom deals and administrative decisions without public or legislative input,” says Sejal Choksi-Chugh, the San Francisco Baykeeper. “Now the U.S. Congress is attempting to steal from the public its right to seek judicial review of the government’s decisions to determine whether they pass legal muster. Removing the vital check and balance of a court’s scrutiny will only empower special interests to cut legal corners and ram through irresponsible projects without considering the long-term consequences of their actions upon generations of Californians and the wildlife of the San Francisco Bay and Delta.”
This week, please call your Members of Congress and tell them they should not support any legislative proposals that lock the public out of the courts:
Photo by James Dalse, Flickr/CC