‘Weapon of choice’: How environmental law in Idaho was gutted | Regional News

As fires burn, fish die and crops falter, Idaho activists and legal firms are limited in how they can address climate change.

A landmark legal case in Montana made headlines this summer after a judge decided that the state’s not considering climate impacts in approving energy projects was unconstitutional.

Idahoans likely couldn’t bring a similar case in front of the courts — both because of a 1996 law that limited what is known as the “public trust,” and because the Gem State’s environmental law is weaker and more limited than certain other Western states.

“We, in part because of … this sort of lack of state environmental laws and regulations, or lack of teeth to the ones that we do have, is part of why we focus on federal environmental law,” said Bryan Hurlbutt, staff attorney for the Idaho-based Advocates for the West.

For example, most of Advocates for the West’s cases are aimed at enforcing federal pollution laws, Hurlbutt said.

The Idaho Conservation League also focuses most of its litigation on federal law.

Hurlbutt and others pointed out potential but unlikely avenues for litigation, like the constitution’s rights to life and the liberty to protect property, both of which could be threatened by wildfires.

Idaho voters also added a right to hunt, fish and trap, which would be threatened by extinctions.

“We’re all kind of nibbling around the edges trying to use existing laws to try and make some big change happen on the climate front,” Hurlbutt said.

Part of that limitation is from the public trust doctrine, which essentially says that the state owns waters like the Snake River, and holds them in trust for the benefit of the people.

The idea is that certain resources are so important they need legal protection, according to a 1997 Ecology Law Quarterly article. For example, Idaho keeps the state’s rivers public so people can fish and recreate. It’s not the most used or effective tool, Hurlbutt said. But its use in Idaho last century was effective enough to scare important industries.

In the 1990s, the powerful irrigation lobby was concerned about disruption to their water appropriation rights. Plus, the powerful timber industry was concerned about environmental groups using the law as a way to protect lands and forests.

The public trust doctrine was “becoming the ‘weapon of choice’” to stop logging, grazing, irrigation, farming or other land uses that “some groups dislike,” wrote Joe Hinson, Intermountain Forest Industry Association executive vice president, in written testimony to the Legislature in 1996.

That year, the Legislature approved HB 794, the bill that limited the public trust doctrine solely to navigable waters — meaning that other resources wouldn’t have that same protection.

In contrast, Montana in 1972 amended its constitution to declare that the government had a responsibility to maintain and improve a “clean and healthful environment…for present and future generations.”

Basically, Idaho doesn’t have any obligation to manage resources for the public trust, said Jerry Long, a law professor at the University of Idaho. Montana specifically declared there was an obligation.

“This would be really hard to do in Idaho under the current legal regimes,” Long said. “The legal structure in place has not evolved consistent with changing knowledge about the impacts on the natural environment or changing public perceptions about what the people prefer.”

EVOLVING AND CHANGING (OR LACK THEREOF)

This summer, temperatures soared to over 100 degrees. On the first day of the Western Idaho Fair, the foothills were blurred by wildfire smoke. In past years, local sheep producers have seen lambs born lighter in weight because a lack of rain meant fewer plants for grazing.

Last summer was the hottest on record in Boise, the Idaho Press previously reported, with 18 days where temperatures hit or exceeded 100 degrees.

And last year at this time, Idaho led the U.S. with the number of current active wildfires in the National Interagency Fire Center’s database, when hot and dry conditions plagued the area.

The story of environmental law threads through long and often technical court cases, but the impacts of bills like HB 794 have real implications for environmental policy and how Idaho responds to climate change.

“When we adopt good laws, whether it’s at the state or federal level, they can be super effective,” said Hurlbutt, the staff attorney at Advocates for the West. “The Clean Water Act cleaned up rivers and lakes and oceans all around the country where you had rivers that used to be so polluted, they could catch on fire.”

Most Idahoans care about climate change, according to multiple studies. But it’s unclear if business and society will catch up enough and make the transition to renewable energy without federal or state laws, Hurlbutt said.

It would be helpful to enact a “bold and visionary law,” like those of the 1960s and 1970s, he said. Think, for example, of the Endangered Species Act and the Clean Air Act.

In a world warming due to climate change, water is more likely to evaporate than to make it into a reservoir. Roaring fires start in dry conditions. And it’s changing the Gem State as we know it.

Redfish Lake, named for the abundance of sockeye salmon, has had its namesake come under threat for decades. In the early ‘90s, Lonesome Larry became infamous as the lone salmon to return to Redfish Lake one year. Hundreds of thousands of Sockeye salmon died in warm river waters in 2015 — a case that Hurlbutt worked on, using federal law to force the EPA to make a plan to address temperature pollution.

Just four years after Lonesome Larry swam home, the Idaho Legislature limited the public trust doctrine. Although some believe that the attempt was not entirely legitimate, no case has yet overturned or undermined the limitation.

The year before, the Legislature added a section of code, 39-3601, saying that the Legislature wanted the state to meet the requirements of the Clean Water Act but not go beyond that.

“It is the intent of the legislature that the state of Idaho … not impose requirements beyond those of the federal clean water act,” said the code, which was signed in March 1995 and effective in July of that year.

And two later statutes imposed additional requirements on Idaho Department of Agriculture and Idaho Department of Environmental Quality rules that are stricter than federal law.

The Legislature took some steps backward in the ‘90s, said Jonathan Oppenheimer, government relations director for the Idaho Conservation League. The league was founded in 1973, during a period where environmentalism was flourishing.