Column: The Natural View; Utah politician is requiring groups to pay money to petition
Do you like the outdoors?
Do you value clean air and pure water?
Do you like to hike, fish, hunt, bird watch, snowmobile, kayak or just enjoy the scenery and wildlife in our public lands?
The overwhelming majority of Utah’s residents would agree most of these categories are fundamental to their quality of life. Sustaining clean air, water and healthy public lands are important and well-established government functions. However, government agencies often fail to do so. Luckily, the checks and balances inherent in our three-branch system of government usually correct governmental mistakes.
But perhaps more fundamental is the First Amendment that secures our right “… to petition our government for a redress of grievances,” – our right to ask government at all levels, through public speech or legal action, to address and correct a problem. In the introduction of the Declaration of Independence, our founders stated King George III had ignored their petitions and was, therefore “… unfit to be the ruler of a free people.” His failing to address their grievances cemented a cornerstone of the Bill of Rights and the First Amendment, in particular.
So what does this have to do with us today? Utah has arguably been the Western epicenter of environmental legal battles over such issues as radiation, water use, land development, wilderness designation and protection, oil and gas exploration and drilling, coal exploration and mining, off-road vehicle impacts and air quality concerns. Various non-governmental groups have, and continue to advocate and protect environmental and public health standards, and public use interests through litigation in our state and federal courts. State Rep. Aaron Tilton has introduced three house bills directly challenging our right to petition government agencies over environmental concerns.
House Bill 100, “Environmental Litigation Bond,” would require that “entities” (non-profit or commercial non-governmental groups) in the State of Utah, must file a bond if and when it begins environmental litigation of a state or federal governmental agency. In the case that non-government petitioners lose, their bonds are intended to cover all the costs accrued by agencies. Such losses include employee pay, benefits, loss of profits or revenue and other “consequential costs.” If a bond is not posted, H.B. 100 stipulates that the state of Utah will have the power to dissolve the non-governmental group, its right to operate in the state and any other licensing of the group.
In other words, a non-profit environmental advocacy group would have to secure a dollar amount that would be estimated by the state of Utah, before continuing legal action. Obviously this would preclude most of these groups from exercising a legal option against the government. But Tilton’s H.B. 259 and 335 go further still. Whereas H.B. 100 regulates “entities,” 259 and 335 pertain to “persons.” These bills require that an individual wanting to legally challenge state air quality control or state radiation control measures, or lack thereof, must also file a bond with the state. This “person” would be required to cover related expenses accrued by the agency – if the individual loses their case. This would effectively block everybody with less than a few million in their savings account.
Tilton argues that these bills are designed to prevent “frivolous” law suits brought on by groups or individuals trying to “hijack” otherwise legal projects, driving costs so high that agencies will reverse direction. The bills have obvious constitutional issues and may not see the light of day, but they unfortunately reflect a growing sentiment within the natural resource professional community. Many agency employees say that environmental litigation has become such a costly and polarizing influence, that it has overwhelmed agencies and their ability to meet basic obligations. One agency biologist termed such lawsuits as “authority without consequence.” Non-governmental groups can essentially manage land through litigation without consequence from the public at large, as opposed to governmental agencies that must consider a spectrum of public interests. A BLM range controller in southern Utah said he is so consumed with court cases and related paperwork, he doesn’t have time to monitor cattle grazing allotments – his essential duty.
Whatever the situation, there is little doubt that environmental litigation runs the spectrum from legitimate lawsuits serving as a safety net for environmental and public health standards, to actions designed to bring agencies to their knees and serve a particular agenda. But the threat to our First Amendment rights and environmental quality, posed by Tilton’s house bills far outweighs the potential for frivolous environmental lawsuits. It is easy to perceive this legislation only relates to “environmentalists,” but maintaining the right to protect our health and environmental integrity is without question the most basic building block of a stable society.
All I know is that July 4, 1776, is a moment in world history that I never cease to be thankful for. Without it, people like Rep. Tilton would have us living under a government with only two branches; the Executive and the Kangaroo Court. It is hard to wrap our heads around what it would be like to live in that society, but just know that our Constitution is the ONLY obstacle to complete suppression of the public voice and public values.
John Goodell’s column appears every Friday in the Utah Statesman. Comments can be sent to jmgoodell@cc.usu.edu.