Tom's Turn: Notes from our Senior Editor

Roadless, Chapter XXXVIII

October 25, 2007

On Friday, October 19, there was a hearing in federal court in Cheyenne, Wyoming, concerning the Roadless Rule, enacted at the tail end of the Clinton administration after several years of planning and a public process that included literally hundreds of public hearings and nearly two million public comments. The rule protected 58.5 million acres of pristine and vulnerable national forest lands, one of the boldest conservation initiatives ever.

The original rule was challenged in nine separate lawsuits. Two judges, one in Idaho and one in Wyoming, found the rule illegal and issued injunctions to block its implementation. The Idaho injunction was overturned by an appeals court. The Wyoming injunction was appealed as well, but before that appeals court could rule (Idaho and Wyoming are in different circuits) the Bush administration repealed the Clinton rule and offered its own, which invited governors to recommend how national forests in their states should be managed.

A handful of states and a bucketful of environmental groups challenged the Bush rule, and a year ago it was found illegal. The judge in this case (it was filed in California), enjoined the Bush rule and put the Clinton rule back into effect.

So the state of Wyoming went back to court asking the judge -- Clarence Brimmer, a Gerald Ford appointee -- to renew the injunction against the Clinton rule he had issued four years earlier.

We rather expected Judge Brimmer to issue a ruling from the bench -- he has a reputation for being flamboyant at times, and he is outspoken in his disdain for anything to do with the Clinton administration -- but after six hours of argument (Earthjustice represents organizations that intervened in the case to defend the Clinton rule) the judge said he had a lot of reading to do and wouldn't be ruling right away.

It seems pretty certain that Judge Brimmer will issue another injunction against the Clinton rule (his fierce opposition to it seems not to have mellowed a whit -- he has repeatedly called it "Frankenstein's Monster"). The main question is whether he will limit the injunction to the state of Wyoming, as the federal government and the states of California, Oregon, and New Mexico have asked him to do, or issue a nationwide injunction, as he did before.

Should he do the latter, and my guess is that he will, the Forest Service will be caught in an impossible situation -- an order from one federal judge to abide by the Roadless Rule and an order from another not to. As one of the attorneys pointed out, the first time a forest supervisor takes any action covered by the rule, no matter what it is, he could be hauled into court and charged with contempt for disobeying one order or the other.

Whatever Judge Brimmer does, the decision will surely be appealed to the Tenth Circuit in Denver, and that court could delay the effect of a Brimmer injunction until it can consider the case. If it should decline to do so, it could be a rather chaotic time in the national forests for some time to come.

Mailbag:

More on Clotheslines

I live in an upper end planned community just outside of Houston, and our homeowner's association does not allow clothes lines, so I have a liner solar clothes dryer. Yeh, folks, if our illustrious president can rename reality so can I. No one has complained of my new (retractable) liner solar clothes dryer and I have had it for eight years.

Go Green,

- Nancy H.

So your subdivision doesn't allow clothes lines? Many of us have nice, sunny decks. 

My wife and I have purchased 3 folding clothes racks, sometimes called diaper racks back when people weren't too lazy to wash and reuse diapers, which we set up, dry the clothes, and then remove after each wash day.

Works fine. It's temporary. And its pretty well out of sight thanks to trees and fences.  Should work for most people, even those in high rise apartments when they have an outside patio.

- Dave P.
Klamath Falls, Oregon

On the general subject of homeowners' associations having rules against clothes lines, it seems to me a bigger problem is that most of them also have rules against solar collectors, either thermal or electric, on roofs. Estimates of the drop in costs of solar panels suggest that these will be extremely cost effective within about five years. Once this happens, the only barrier to massive use of solar electric panels on home rooftops (and the biggest restriction now to solar water heaters) will be the homeowners' association rules. It seems to me that we need a movement now to have government regulations that prevent homeowners' associations from enforcing such rules. There are already similar federal laws preventing homeowners' associations from banning certain antennas under the FCC laws, and Congress occasionally moves to pass laws against displaying American flags, so such laws are obviously constitutional and valid.

- David L.
DeLand, Florida

The Big Problem

I wish, every now and then, that over-population is mentioned as the major issue in increased demand for energy resources...Without an adequate and comprehensive plan for reducing and maintaining populations at reasonable levels, we are all doomed, with or without Earthjustice.

- Freda W., Ph.D.

Recharging Hybrids

I've been following the comments in the "mail bag" part of the e-letter I get. Primarily talking about the hybrid plug-in vehicles. I kept waiting for someone to bring up the whole point of it that was so clear in my mind, but no one has. The one key point no one has brought up is this:

The plug-in hybrid has the potential for greatness if people were to utilize the energy from their home-system of solar panels! There would be no need for arguing about all the emissions from the local coal-burning plant period! We each have the potential to produce most (if not all) of our own power, with our own alternative energy within our own homes (solar, even wind!).

I have to wonder, why has no one brought up this point? To me, it seems reasonable, and it would certainly stop the debate cold. If you can afford a car, you can certainly (with rebates, etc.) afford a solar panel system to generate the energy you need to power up your car!

V. Alexander

Thanks for all the mail! -TT

Tom Turner, Senior Editor
yourturn@earthjustice.org