Even if you’ve never heard the word “lawfare,” you probably can guess its meaning; waging war with laws. It is a strategy that is alive and well in environmental issues.
The word was coined in 2001 and mostly used in military circles to describe using laws instead of weapons in war. However, starting around 2012, military experts on lawfare started discussing how environmental laws could be used for strategic purposes.
“Broadly defined, ‘lawfare’ is the manipulation of the legal system against an enemy with the intent to damage or delegitimize them, waste their time and resources, or to score a public relations victory,” noted Committee Chairman Rob Bishop (R-UT-01) in his opening statement to the recent House Natural Resources Committee hearing on the National Environmental Policy Act (NEPA).
“Projects related to energy and natural resource development are the most frequent targets of environmental lawfare,” he continued. “In those cases, opposition groups usually advertise their intent to use lawsuits challenging the adequacy of an agency’s NEPA review as a continuation of their ideological opposition to the challenged activity.”
As discussed at length during the hearing, litigation of NEPA reviews have both a direct and indirect result. Directly, environmental litigation increases the length of time it takes to get through a NEPA project by adding years in court to the process.
Indirectly, as several participants of the hearing suggested, the threat of litigation has a chilling effect, driving agencies to be more cautious about conducting NEPA reviews to protect them from lawsuits.
“This phenomenon is reflected in the increasing cost, length, and complexity of environmental reviews,” Bishop noted.
“The impact of environmental lawfare has on federal decision-making is often compared to that of malpractice suits on doctors’ medical decisions. In an attempt to immunize NEPA reviews from lawsuits, agencies experience ‘analysis paralysis.’”
Both Bishop and several of the hearing witnesses pointed out how the average length of time it takes to complete an environmental impact statement (EIS)—the most stringent of the environmental reviews under NEPA—has increased to over five years. And that is without the final decision being challenged in court.
But analysis paralysis is not only restricted to EISes, according to Bishop. He pointed out that lesser environmental reviews such as environmental assessment documents—originally recommended to be between 10-15 pages long—can be thousands of pages long and cost millions of dollars to produce.
Ethan Lane, executive director of the Public Lands Council, said that the chilling effect of environmental lawfare has worked its way down to the land managers considering grazing permit renewals. Usually, grazing renewals fall under NEPA’s categorical exclusions. But Lane pointed out that many land managers are opting to do environmental reviews anyway to theoretically protect themselves from litigation.
“Once you open that Pandora’s Box… then you go down the rabbit hole of alternatives and valuations and different issues to look at, and very shortly you find yourself with these massive, thousand-page documents that took five years,” he said.
“That’s where this ‘lawfare’ phrase comes in; when we talk about litigation abuse, this is at the heart of that.” — Kerry Halladay, WLJ editor
