Joshua Osborne-Klein is a young lawyer in Earthjustice's Seattle office, and a product of the law school at Seattle University. He has been on the job since September.

A couple months back, timber interests filed suit in federal court in Washington, DC, seeking the delisting of the marbled murrelet, a sea bird that nests and raises young in trees the industry wants to cut down. Because of Earthjustice's long history of working for the Northwest's forests and their inhabitants, we decided we would seek to intervene in this case. Kristen Boyles, a veteran attorney who has defended murrelets in the past, asked Josh to review the complaint submitted by the American Forest Resource Council.

Marbled murrelet

Photo: FWS

So Josh is reading through the turgid document, and he comes across this: "'[t]he Secretary shall delist a species if . . .[a] status review determines that a species no longer meets the criteria in section 4(a)(l).' (Emphasis added)." According to the complaint, this language is in a certain section of the Code of Federal Regulations that decrees how the Endangered Species Act is to be implemented.

Something didn't sound quite right. Josh dug out the code book and went to the cited section. Curiouser and curiouser. The section cited in the brief didn't say that at all. In fact, it says nearly the opposite: "A species may be delisted only if . . . it is neither endangered nor threatened . . . ."

So where does this quoted language come from? Josh wondered. He searched via Westlaw. Nothing. He searched via Google. Nothing. He was stymied.

A few weeks later, he tried Google once again and hit pay dirt. Turns out the language was lifted from draft revisions to the ESA regulations that were leaked and published by Salon.com and picked up all over. The draft was based partly on legislation that was narrowly defeated in the last Congress -- it would have more or less destroyed the Endangered Species Act.

The news stories about the draft regulations caused such a furor that the administration backed quickly away from them.

But a tiny fragment from the draft regs had already been filed in federal court, alleged to be legally binding even if the regs had never been formally proposed, let alone approved.

How could this possibly happen? A clue lies on the last page of the brief. One of two lawyers representing AFRC is Mark Rutzick, a long-time timber industry lawyer from Portland who did a stint in the Commerce Department advising the Bush administration on, of all things, the Endangered Species Act. As a member of the inner circle when he was at Commerce, Rutzick had a hand in other efforts to roll back the ESA. Did he help draft these revisions, knowing how helpful they would be to his timber industry clients after he left the government? We may never know, but trying to pass off your dreams as the law is a very risky strategy for a lawyer to try. Along with their motion to intervene, Josh and Kristen, on behalf of nine conservation groups, filed a motion to dismiss AFRC's claims that rely on the draft regulations. Two days later, AFRC amended its complaint to delete all references to the draft regulations.

On to the mailbag:

Saying nuclear reactors are the answer to global warming is like saying arsenic is the answer to mercury poisoning.
-- Ed Carter

I grew up in a town with a nuclear plant. I rode my bicycle down to the beach it was on in Zion Il. I discovered that accidental releases were frequent and unreported. One official I questioned said don't worry, you aren't being exposed anymore than if you had a chest x-ray. Any waste not stored on site must be transported, and it went right through the neighborhoods. Many of the guards and employees were alcoholics (my boyfriend was a bartender). Safe, no. I'm now on anticancer medication. A prominent doctor in town tried to sue over his cancer, but he died first. There is a cancer hospital in the town now. When they argued to put the reactors in, the newspaper ads said no one died of radiation poisoning in Hiroshima, and radiation is safe. I don't trust any for-profit industry to be less of a liar today.
-- Sarah Hollenhorst

It is good to know that some in the environmental movement are starting to see that nuclear is by far the lesser of two evils. I was frightened to see in your poll that most are still afraid of the nuclear wolf are ready to let us suffocate in our carbon emissions. Priorities have changed!
-- Ransom David Stone, Colonel AUS (retired)

Tom Turner: The poll was on the Earthjustice website. More than 900 people took it. Preliminary results are as follows:

Would you support nuclear power?
Yes 8.3%
No 59.4%
Maybe 24.2%
Queasy 8.1%

It has to do with efficiency. A fuel cell, sitting next to your home, using a variety of home grown fuels such as ethanol from sugar cane, is at least 5 percent more efficient than using the older remote huge central power plant. It is to be expected that, with investment in this area, that an even greater gap will grow in this efficiency factor.

The idea of using distributed power generation is even more attractive when one considers that terrorists could easily destroy central plants and high tension distribution towers.
-- James H. Smith, Spring House, Pennsylvania

Alternative energy sources will never supply a significant fraction of our needs. Plus, besides global warming, the world will hit Peak Natural Gas by 2030, leaving less and less of it for electrical generation needs.
-- Steve Snyder

TT: With no citation offered it's hard to argue with Mr. Snyder, but there are plenty of studies that project a swiftly growing fraction of electricity coming from alternative sources and a vast potential of reducing demand via conservation.

I would prefer death by global warming over death by radiation. Nuclear Power engineering is not perfect and failures of the past should not be forgotten. Thousands of people died in Russia and are still dying from Chernobyl. Is that the legacy we want to leave our children's children?
-- Brad Sievers

I for one do not want to be sitting in the dark waiting for solar or wind to get more traction. Or sitting in my lighted warm house powered by high-sulfur coal power plants resulting from the fears of an uninformed electorate.

Efficiency is good business, and good for the US economy. I will not financially support environmental organizations that actively argue against including nuclear power in our energy debate.
-- Jeffrey D. Swanson, R.G., Cranbury, New Jersey

Tom Turner, Senior Editor
yourturn@earthjustice.org