Ringling Brothers Circus to End After 146 Years

The stunning news by Ringling Brothers Circus that it is closing its doors and will perform its last show in May of this year means that the horses, llamas, dogs, tigers, and other animals, along with the elephants who left the Circus last year, will no longer have to endure life on the road and the treatment that is required to make them do unnatural tricks on demand.  We salute those members of the public – and especially the younger generation – who have learned that it is much better to enjoy entertainment that does not require the exploitation of animals.  We also celebrate the bravery of Tom Rider – the former barn man for Ringling Brothers – who had the courage to come forward years ago and tell the public what really goes on behind the Big Top.  We now hope that all of the animals will find homes in sanctuaries where they can live out the remainder of their lives in peace.

Brief Filed In Challenge To Highway Bypass Through Sensitive Wetland, Interior Forest, And Threatened Bat Habitat Near Waukesha, Wisconsin

On behalf of two community associations, the Waukesha County Environmental Action League and the Coalition Opposed to the West Waukesha Bypass, we have filed a brief challenging the Federal Highway Administration’s approval of the Wisconsin Department of Transportation’s decision to construct and fund the Waukesha Bypass – a major highway project that would construct a four-lane, north-south highway west of the city of Waukesha, Wisconsin.  In violation of the National Environmental Policy Act’s “look before you leap” requirements, the highway project was approved without proper consideration of reasonable alternatives or the indirect and cumulative effects of the project on wetlands water quality, and air quality.  Additionally, new information recently disclosed demonstrates that the project will disturb improperly disposed hazardous waste, and have increased adverse impacts on wetlands, groundwater, upland forest habitat, and a threatened species newly protected under the Endangered Species Act, the Northern Long-Eared Bat – all of which have never been evaluated but which federal law requires the agencies evaluate.  Our brief argues that the agencies violated federal law when approving this highway project without properly evaluating its potentially significant environmental effects, and by failing to consult with the Fish and Wildlife Service over the project’s adverse impacts to the threatened Northern Long-Eared Bat. A copy of our brief is available here.

Conservation Groups Urge Tenth Circuit To Maintain Longstanding Preliminary Injunction Test

On behalf of more than a dozen national, regional, and local conservation organizations that regularly litigate in the U.S. Court of Appeals for the Tenth Circuit to protect vulnerable public lands, wildlife and animals, and natural resources located in Colorado, Utah, New Mexico, Wyoming, Kansas, and Oklahoma, our firm filed an amici curiae brief in support of a pending request asking the full court of all active Tenth Circuit judges (or alternatively a panel of three judges) to rehear the question of the appropriate legal standard that plaintiffs must satisfy before obtaining a preliminary injunction.  Bucking decades of precedent from the U.S. Supreme Court, other federal courts of appeal, and even the Tenth Circuit’s own longstanding rulings, a three-judge panel recently determined that plaintiffs may only obtain preliminary injunctions where they can conclusively demonstrate at an early stage of the proceedings that they are likely to success on the merits at the end of the case.  In so doing, the panel eliminated a decades-long test, in which plaintiffs could demonstrate the need for a preliminary injunction by establishing that there are “serious questions” as to whether a defendant’s action was lawful under the circumstances while also proving that the other injunction factors (i.e., irreparable harm, the equities, and public interest) strongly support an injunction.  Given the exceptional importance of this question in a Circuit where many public lands and natural resources issues are resolved—and the circuit split caused by the panel’s ruling—our brief requests that the Court reconsider this issue to, among other things, ensure that an overly stringent standard does not frustrate effective judicial review of federal agency actions that often proceed on rapid schedules that overtake the ability of courts to issue final merits dispositions before such actions become moot.  The brief can be found here.

BRIEF FILED ON BEHALF OF PUBLIC HEALTH GROUPS ADVOCATING FOR CIGARETTE “CORRECTIVE STATEMENTS”

On behalf of the Tobacco-Free Kids Action Fund, American Cancer Society, American Heart Association, American Lung Association, National African American Tobacco Prevention Network, and Americans for Nonsmokers’ Rights, today we filed a brief in the U.S. Court of Appeals for the D.C. Circuit in the long-running litigation against cigarette manufacturers for defrauding the American public for decades concerning the public health risks and addictiveness of cigarettes.  In the brief filed today, we argue that “corrective statements” approved by the federal district court – which must be included in cigarette packages, as well as in newspapers, on television, and in other forms of dissemination – telling the truth about the hundreds of thousands of deaths caused each year by cigarettes and their intentional design to addict smokers to deadly products, is an appropriate remedy for the cigarette manufacturers’ violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and is fully consistent with the First Amendment.  A copy of the brief can be found here.

Firm Urges National Park Service To Prepare A Supplemental Environmental Impact Statement Before Killing Any More Deer In Rock Creek Park

On behalf of a group of individuals who live near Rock Creek Park in Washington, D.C., we sent a letter to the National Park Service asking it to prepare a Supplemental Environmental Impact Statement before killing any more white-tailed deer in the Park this year and in the future.  When the Park Service decided to initiate its lethal control program in 2013 – the first time it killed any native wildlife in this National Park since its establishment over 120 years ago – it purportedly based that decision on the belief that the deer were interfering with the regeneration of native vegetation in the Park and said it wanted to reduce the deer density to between 15 to 20 deer per square mile, which the Service claimed would allow for “successful forest regeneration.”  Our clients argued unsuccessfully that the problem was not an over-population of deer but that the Park has for decades been overrun by invasive non-native plant species, many of which originate from private and commercial landscaping that surrounds the Park. Now, after three years and the killing of hundreds of deer, we have learned from records obtained under the Freedom of Information Act that the deer density is only 19 deer per sq. mile – i.e., it is now within the Park Service’s desired range -- yet there is no evidence that the reduction of deer has had any impact whatsoever on native forest regeneration.  At the same time, the non-native plant species continue to proliferate throughout the Park unabated. Because agencies have an obligation under the National Environmental Policy Act (NEPA) to rethink actions that have a negative impact on the environment if circumstances change or new information shows that the action is no longer justified, we have asked the Park Service to prepare a Supplemental EIS before killing any more of this native wildlife.  A copy of the letter can be found here.

CLARENCE DITLOW

Sadly, our friend, client, and colleague Clarence Ditlow has passed away at the age of 72.  Clarence, the Executive Director of the Center for Auto Safety since 1976, was one of the leading automobile safety advocates in the country for many decades and his work led directly to safety improvements that saved the lives of many thousands of people.  We recently represented Clarence in a major Freedom of Information Act case relating to the bailout of the auto industry and we worked closely with him on other issues over the years.  In addition to being a leading consumer advocate, Clarence was an ardent animal lover and gardener.  We are honored to have called him friend and colleague and will miss him greatly.      

New York Times obituary about Clarence

The ABA Publishes Article by Bill Eubanks Analyzing The Implications Of Our Firm’s D.C. Circuit Victory Against The Cape Wind Project

Earlier this year, the U.S. Court of Appeals for the District of Columbia ruled in favor of our clients in a long-running challenge to the Cape Wind Project under the Endangered Species Act and Migratory Bird Treaty Act.  In a related case, the Court also ruled that federal regulators violated the National Environmental Policy Act with regard to surveys of the ocean floor that are necessary before construction and operation of the project.  This week, the American Bar Association published an article written by Bill Eubanks of Meyer Glitzenstein & Eubanks LLP examining the D.C. Circuit’s ruling and its legal and practical implications for other energy projects.  In particular, the article encourages energy developers to work collaboratively with local stakeholders early in the project siting process and stresses the need for federal regulatory agencies to serve in an objective and impartial fashion when reviewing and ultimately approving energy projects located on lands or waters within federal jurisdiction.  The article can be found here.

UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT REJECTS R.J. REYNOLDS ARGUMENT THAT IT SHOULD NOT BE REQUIRED TO RUN EXTRA SETS OF CORRECTIVE TV ADS AFTER MERGER WITH BROWN & WILLIAMSON

The U.S. Court of Appeals for the D.C. Circuit has struck yet another blow to the tobacco industry’s efforts to avoid informing consumers about the horrific health effects of cigarettes – a product that kills more than 480,000 people each year in this countryas a remedy for defrauding the public for decades about the health effects and addictiveness of cigarettes.  In a unanimous ruling, the U.S. Court of Appeals rejected R.J. Reynolds’ argument that it should be relieved of the responsibility to air two sets of Television Corrective Statements concerning the adverse health effects of cigarettes – an argument that RJR made after it merged with Brown & Williamson, another company that was also subject to the District Court’s 2006 Order requiring the companies to cease their fraudulent and deceptive practices and to issue corrective statements in newspapers, on TV, the companies’ websites, and on package inserts.  RJR had argued that because of the merger it should only be required to air one set of TV ads.  The Court of Appeals disagreed and accepted the arguments we advanced on behalf of our public health clients that are participating as intervenors in the Justice Department’s RICO case against the tobacco industry  – the Tobacco Free Kids Action Fund, the American Cancer Society, the American Heart Association, the American Lung Association, American for Nonsmokers’ Rights, and the National African American Tobacco Prevention Network -- that RJR had waived its opportunity to make such arguments and that it is required to air two sets of TV corrective statements.  The TV statements must be run on one of three major networks at least once a week for a year.  A copy of the D. C. Circuit’s decision can be found here

NOTICE OF INTENT TO SUE SENT REGARDING FEDERAL WIND PROJECT IN MAJOR BIRD MIGRATION ROUTE

On behalf of the American Bird Conservancy and the Black Swamp Bird Observatory, we have sent a detailed Notice of Intent to Sue letter regarding the Ohio Air National Guard’s proposal to construct a wind turbine at Camp Perry in Ottawa County, Ohio.  As explained in the letter, from a wildlife standpoint, the project is proposed to be built in one of the worst possible locations to construct and operate a wind power project – in close proximity to the Ottawa National Wildlife Refuge and in a major bird migration corridor.  The letter also explains that the project would set a dangerous precedent for the construction of other wind turbines on the shore of Lake Erie, an area of crucial importance to migrating songbirds, raptors, and shorebirds as well as bald eagles that reside in the area.  The letter explains that proceeding with the project would violate the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the National Environmental Policy Act.  A copy of the letter can be found here and the American Bird Conservancy’s press release can be found here.

Challenge to USDA’s Automatic Licensing Renewal Scheme Reaches the Fourth Circuit

We have filed our opening brief in the Fourth Circuit Court of Appeals concerning a challenge by People for the Ethical Treatment of Animals to the policy of the United States Department of Agriculture whereby the USDA automatically renews the licenses of Animal Welfare Act exhibitors, every year, regardless of whether the exhibitors are operating in violation of the Animal Welfare Act.  On behalf of PETA we have challenged the policy – and five separate license renewal decisions – on the grounds that the policy violates the plain language of the Animal Welfare Act which provides that “no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary” under the statute.  The USDA takes the position that as long at a licensed exhibitor (or dealer) pays its renewal fee on time and certifies that it is in compliance with the statute, the agency has no authority to refuse to renew a license even where evidence before the agency demonstrates that the exhibitor is operating in flagrant violation of the statute – including, for example, by denying food, water, and veterinary care to the animals in its possession.  The same legal issue was decided against animal welfare groups by the Eleventh Circuit in Animal Legal Defense Fund v. U.S. Dep’t of Agriculture, 789 F.3d 1206 (11th Cir. 2005), and is also pending in Animal Legal Defense Fund v. Vilsack, No. 16-5073, in the D.C. Circuit.  A copy of our Fourth Circuit brief can be found here.