Last week one of our best lawyers found himself sparring both with a government attorney and with some members of the high court.  Eric Glitzenstein, of the exceptional D.C. firm known as Meyer, Glitzenstein, and Crystal and a member of our Advisory Board, participated in oral arguments in a lawsuit known as "Defenders of Wildlife v. U.S. Environmental Protection Agency."

We've got the transcript of the oral arguments (PDF) in case you are interested in the details, but the issue at hand boils down to this:  does the Environmental Protection Agency, when taking action under the Clean Water Act, have to comply with the Endangered Species Act.  It specifically involves section 7 of the act, which requires federal agencies to consult with the U.S. Fish and Wildlife Service before taking actions that may harm threatened or endangered species.

Lawsuits are funny things.  Litigation is clearly a tool of last resort, but with the Bush administration's aggressive anti-conservation agenda we often have no choice but to ask the courts to intervene.  We usually win - our litigation record is 21-2 - but you never really know when your lawsuit will make its way to the Supreme Court.  It doesn't happen often, but when it does, especially with this increasingly conservative court, you never know what might happen. 

One attorney at a conference I attended in March half-jokingly commented that we are now entering the post-section 7 era, referring to the Bush administration's insistence on simply ignoring that part of the law and the growing number of courts that are letting them get away with it.  The Supreme Court will issue a ruling later this year, and we'll find out then how well this fundamental "look before you leap" tenet of the Endangered Species Act fared.