WildEarth Guardians’ natural habitat is a courtroom

Patrick Kelly

Though a relatively small organization with only 26 people on staff, WildEarth Guardians’ litigious nature has established the environmental advocacy group as a dominant voice in the national debate about environmental policy.

From 2010 to present, Guardians have initiated a total of 152 cases in federal district courts and 55 in the Circuit Court of Appeals for a total of 207 cases. In 2010 alone they filed 61 claims — an average of about one per week.

However, Guardians’ pervasiveness in the courts has not gone without criticism.

In a 2012 analysis of WildEarth Guardians’ legal activity, the conservative group Americans for Prosperity claimed that Guardians has been “misusing the judicial system, exploiting poorly-written laws and taking advantage of taxpayers to pursue a narrow, litigation-driven, special interest agenda.”

Proffesor Mark Squillace, director of the Natural Resources Law Center at the University of Colorado-Boulder, disagreed.

Squillace said although some might view Guardians’ agenda as radical, they have been effective and pragmatic in implementing their approach to conservation.

“It’s a fairly interesting strategy, but it’s really grounded in basic notions of cost-benefit analysis,” he said.

John Horning, executive director of WildEarth Guardians, offers no apologies for his organization’s activeness in the courts.

“We’re a nation of laws, it’s a cornerstone of our American identity, and our legal system is oftentimes the last recourse of justice for interests and peoples that have been marginalized or whose issues haven’t been heard,” he said.

Although Guardians received $523,038 in government grants in 2014, grant money is always designated for special projects and not used for litigation costs.

“At one point in time we were suing the EPA five times in the state of New Mexico and they still were giving us money to do restoration work,” Horning said, adding that multiple audits can prove litigation money and restoration grants do not mingle.

Another cause for concern among opponents of WildEarth Guardians is the Equal Access to Justice Act, which allows litigants to collect reimbursement for legal expenses if they are deemed the prevailing party in a suit.

However, most of the laws Guardians files its claims under already have a citizen suit provision establishing reimbursement for the winning party.

“These citizen suit provisions were written for the same reason that EAJA (Equal Access to Justice Act) was written – to basically encourage people to enforce the law when the government failed to,” Squillace said.

Tri-State Generation and Transmission Association, a Westminster-based energy cooperative that owns Colowyo Coal Mine and operates Craig Station, was recently swept up in Guardians’ storm of litigation after a mining plan modification for Colowyo was successfully challenged in the U.S. District Court for the District of Colorado.

Lee Boughey, senior manager of corporate communications and public affairs for Tri-State, said in a statement that the courts should not be a first resort.

“Environmental policy, regulations and law should be set by state legislatures and Congress, and based on sound science, a thorough cost-benefit analysis and appropriate timeframes for implementation. These are difficult issues, and it is a far better for all stakeholders to commit to work together to develop sound regulatory policy that take these consideration into account, as opposed to running straight to the courts,” he said.

Reach Patrick Kelly at 970-875-1795 or Follow him on Twitter @M_PKelly.

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