Widener Law Environmental Clinic Wins Precedent-Setting Victory
Ken Kristl - Published: March 26, 2009
KristlPrimeHookWinPromo“This is an extremely important victory for the environment,” Environmental Law and Natural Resources Clinic Director and Associate Professor of Law Ken Kristl said of the March 24, 2009, ruling that sets a first-in-the-nation precedent for regulating farming and the use of genetically modified crops at national wildlife refuges across the country.

In Delaware Audubon Society v. Salazar, Chief Judge Gregory Sleet of the United States District Court for the District of Delaware granted summary judgment in favor of Clinic clients Delaware Audubon Society, Public Employees for Environmental Responsibility, and Center for Food Safety in a challenge to farming practices at the Prime Hook National Wildlife Refuge in Sussex County, Delaware.

Clinic interns and Clinic Director Ken Kristl played a central role in drafting the federal complaint challenging the practice of allowing farming in general and farming with genetically modified crops in particular at Prime Hook. The Complaint alleged that US Department of the Interior and the federal Fish and Wildlife Service violated the National Wildlife Refuge Administration Act (NWRAA) by failing to first determine if the farming was compatible with the Refuge’s purpose of protecting migrating birds, violated the National Environmental Policy Act (NEPA) by allowing the planting of genetically modified corn and soybeans without first preparing an environmental impact statement, and violated the federal Administrative Procedures Act.  The Complaint sought injunctive relief preventing any farming until NWRAA, NEPA, and the APA were complied with.  The Clinic then drafted a motion for - and the briefs in support of - summary judgment on all claims.  Judge Sleet’s ruling found that the federal government violated NWRAA, NEPA, and the APA, and granted the injunctive relief sought in the complaint.

 “Farming can fragment habitats and make it more difficult for native species and wildlife to thrive in a place that is supposedly set up for them.  As part of the motion for summary judgment, we offered evidence which suggested that the genetically modified crops would likely result in the increased use of pesticides and herbicides that would adversely impact the environment.  The court’s ruling requires the federal government to follow the law and consider these environmental impacts,” said Professor Kristl.

“The ruling is the first applying the NWRAA and NEPA to farming activities at wildlife refuges,” added Kristl.  “Because more than 80 other wildlife refuges across the country allow farming without compatibility determinations or environmental impact statements, the ruling sets a precedent that will likely have national application and impact.”  Indeed, one of the clients is already publicly discussing a plan for nationwide litigation based on the ruling.

Professor Kristl was especially pleased that the Clinic and its students played such a central role in the case.  “This is the essence of the environmental clinic experience,” he said.  “We had clients that needed our help to address an environmental problem. Students researched the law, marshaled the facts to support our arguments, and now get to see how our advocacy can have a demonstrable legal impact that will protect the environment. It is very exciting to be at the cutting edge of an issue like this.”