Kathleen Booth and Jay Tutchton think the feds auto follow the law.
James Glader

Spinning Their Wheels

While Congress fights over what promises to be the nation's energy policy for the future, a University of Denver law student is fighting to make the federal government keep its energy promises of the past.

Last fall, Kathleen Booth signed up for DU's Environmental Law Clinic Partnership, a semester-long course in which students do the grunt work for lawsuits to be filed by the Tucson-based Center for Biological Diversity. The students get firsthand experience in exchange for credit; the center gets free legal help with cases it might otherwise not have the resources to tackle.

The director of the clinic, Jay Tutchton, is one of two full-time lawyers who can sign legal papers and make court appearances in connection with these cases. He meets with his class each week to plot legal strategies on how they can right environmental wrongs. "If you talk to students in their first year, or when you read their personal statements about why they get into law school, no one says, 'I just want to make a shitload of money and drive a BMW,'" Tutchton says.

Booth, who grew up in Texas, was concerned with excess energy consumption and began researching allegations that the government had failed to follow a policy made after the first war in Iraq, a policy designed to alleviate the country's dependence on oil by promoting the alternative fuel industry. Under this plan, the feds were supposed to purchase a certain number of vehicles that use alternative fuel, or AFVs, every year.

"I think that renewable energy and alternative fuels are going to be really important in preserving what we have now and fixing the damage that we've caused," says Booth, who drives a Honda Prelude.

Thirteen years ago, when Booth was just twelve and the first President Bush was in office, Congress passed a law mandating that, by 1999, 75 percent of the federal fleet of light-duty vehicles (excepting emergency and tactical vehicles) be capable of running on alternative fuels rather than on gasoline. State governments were given until 2001 to meet the same mandate.

The feds are nowhere close, Booth says. And on April 14, in U.S. District Court in San Francisco, she and the clinic filed a lawsuit on behalf of the Center for Biological Diversity, charging that fifteen government agencies are in violation of the Energy Policy Act of 1992, either for failing to comply with the requirements of that act or by failing to post their compliance reports.

According to Tutchton, another provision of the act required that the program be expanded to municipal and large private fleets if federal and state governments failed to meet the long-term goal of reducing the nation's gas consumption by 30 percent by the year 2010. The government was supposed to reset the goal if it was deemed unachievable, but that hasn't happened. "That's where they really screwed up, because they chose not to reset the goal to make it achievable," Tutchton says. "In some sense, lawsuits are a defensive strategy to the government's failure."

But Department of Energy officials argue that the 30 percent reduction in fuel usage was simply a goal, not a mandate; given that interpretation, the DOE has no plans to expand the AFV program to private and municipal fleets. The feds also contend that they've exceeded this year's expectation of a 75 percent AFV fleet by purchasing alternative fuel vehicles 99 percent of the time. Right now, they say, there are more than 85,000 AFVs in the government's fleet.

But that response isn't enough to satisfy the plaintiffs. Among other things, their suit charges that the Department of the Interior fleet is only 31 percent AFV, and the Commerce Department only 17 percent.

Since the government was served with the suit back in April, more reports of alternative fuel purchases are suddenly surfacing, Tutchton says. A couple reports are still unaccounted for, however, and the clinic has moved for a summary judgment hearing on July 14 to obtain the missing reports. According to Tutchton, some federal agencies have expressed their willingness to hand over reports but have yet to do so, while others, such as the departments of Labor, Commerce and Transportation, are turning in reports that show them to be grossly out of compliance with the act.

While the DU clinic dukes it out with the feds in court, the House and Senate have their own battle -- and their own bills -- over where to take the country's energy policy. As a member of the Senate Committee on Energy and Natural Resources, Senator Ken Salazar helped craft the Senate proposal. He says the most important part of the energy bill is a major new initiative on conservation to waste less energy. "We have embraced renewable energies in Colorado," he points out. "I want the country to do that as part of our energy framework. Technology has great promise for us."

But this state's greatest source of energy may be the DU clinic. About ten students sign up for the program every semester, and over the clinic's ten-year history, those students have worked on more than a hundred cases that have been litigated, Tutchton says. Many students enter law school wanting to save the world -- or at least the environment -- but a harsh reality awaits them after graduation. "They can't afford to do public interest work with their loan burden," he points out. "That's why the clinic is important: It lets them do what they came to law school to do."

Tutchton was working at a similar clinic at the University of Colorado when DU set up its own program and lured him over. DU's original partner was a small nonprofit called Earthlaw, which paid Tutchton's salary; DU kicked in for a counterpart and also hooked up offices and offered the clinic access to the law library. After Earthlaw merged with a large national firm, the Center for Biological Diversity stepped up and funded half of the two-person staff. This year, DU finally assumed the entire cost of the clinic.

"I think DU liked the clinical program," Tutchton says. "If you look at the areas of law school where DU is nationally ranked, two of the areas are its environmental-law program and its clinical-law program, and I think the university sees that as something they want to support."

At this clinic, the students' legal efforts have mostly been on behalf of endangered species, and they've protected everything from plants in Colorado to frogs in Puerto Rico. "I can still count the losses on one hand," Tutchton says.

The current lawsuit against the feds is another animal entirely. A woman with defense contractor Lockheed Martin originally tipped Tutchton to the fact that the AFV mandate was being ignored. As evidence, she pointed to the fact that Lockheed had been producing AFV buses in anticipation of the demand the act was supposed to spark -- but when that demand never appeared, the buses got dusty.

Booth, who came to DU specifically for its environmental-law focus, was eager to take on the cause. "The integrity of the law is an important thing," she says. "I'd like to think that I could make a difference at some point. The clinic has been my favorite part of law school so far. I love doing things that actually matter."


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