Litigation 

Under the detailed volumes of law and regulation guiding conservation there is still room for disputes.

Mistakes, unforeseen details, new situations, and advocates trying to reverse a decision can all lead to court.  There the judges must sort out interpretations of science, soundness of facts, and the limits of professional judgment.  Lawsuits are routine in conservation.

The most common lawsuits claim, basically, that the decision process was not followed as required by the National Environmental Policy Act and Administrative Procedures Act – the “technicality” cases.  Other cases pit the intent of laws written long ago against the realities of situations today – the “substantive” cases.

The politics of lawsuits are heavy on all sides:  public interest against personal choices, access to the courts against selfish monkey-wrenching, and precaution against insightful action.  People and nature both can suffer.  The Equal Access to Justice Act and many “citizen-suit provisions” in law since the mid-1900s have invited citizen lawsuits and reimbursed legal fees so private parties can check government’s power.  This also has allowed special interests to attack government.  Debates are underway on how to protect the public interest from litigation itself.

Watershed Results is not a law firm but works on the issue of litigation because of its effects for good or ill in conservation decision-making. We have worked on the Open Book on Equal Access to Justice Act (enacted in 2019) to collect data on litigation that will help manage their causes and frequency. We work on specific court cases in nearly every assignment either because a past case has interpreted relevant policy or because a pending case could change outcomes.