Oh No, It's Mr. Bill!
Do Bill Bunch's Tactics Hurt the Springs He Loves?
It is a dilemma that environmental attorney Bill Bunch faces daily, surely when he's sitting on the Barton Springs hillside, as he often does, overlooking the once-immaculate showpiece of the watershed he has struggled for nearly a decade to preserve. He knows the aquifer is increasingly on the brink, as the evergreen coat of juniper in the hills west of Austin is slowly being replaced by strip malls and asphalt.
It hurts him personally, he says, but he'll not shy from adversity. If anything, he says, he'll step up the endless battle he has waged against those developers and lawmakers who have sought to capitalize on the beauty of those plush Texas hills. "I won't be a partner in the destruction of the creek," vows Bunch. "I'm going to go out kicking and screaming and say I got my butt kicked."
As the lead foil to a political culture that increasingly favors property rights over land conservation, Bunch has done plenty of kicking and screaming. Five years ago, he helped forge a once-ineffectual environmental community into a viable political force that passed one of the nation's strongest zoning laws, the voter-initiated Save Our Springs water-quality ordinance (S.O.S.). Bunch drafted that law to protect the aquifer, and as lead counsel for the S.O.S. Alliance has remained its guardian, taking all legal extremes to repeatedly salvage it from the slings and arrows of local and state officials.
Now it's deja vu in the S.O.S. saga, and Bunch is again at the forefront of an environmental community at odds with itself, and not surprisingly, with local policy makers. While a state appeals court recently upheld S.O.S. as valid since passage, a city council decision made two years ago to enact a weaker ordinance during the S.O.S. appeal could effectively render S.O.S. moot. Bunch says that if development applications proceed under the weaker ordinance, colloquially known as Comp II, the aquifer's destruction would be hastened -- an additional three to four times as much concrete would be allowed as under S.O.S. Backed by groups like the Sierra Club and Earth First!, he claims the council illegally passed Comp II, and demands that development applications filed under it be re-filed under S.O.S.
But others, particularly members of the more conservative Save Barton Creek Association, aren't so ready to side with the S.O.S. attorney. They think Bunch's request could hurt the city, permitting a bevy of lucrative lawsuits from developers angry that the rules had been changed in mid-game. It's not the first time Bunch's strategy has been questioned, especially by some members of the SBCA. They and other critics within the environmental community complain that Bunch has a win-at-all-costs attitude that has made him the Raging Bull of Austin's environmental movement. Like Jake LaMotta, he is damn good and frequently prevails. But in the end, some say, he is his own worst enemy, a man whose zeal for victory prevents him from knowing when to compromise for the better. And hence, it's the environment itself that suffers most.
Bunch offers no apologies for what many characterize as thoughtless intractability. Compromise and consensus-building do not come easily to a man like Bunch, who sees giving in as another eternal blow to a rapidly diminishing paradise. "If you say `Yes,' it's love; if you say `No,' it's rape. And I'm not going to make love to the people who are destroying the creek," vows Bunch.
An Activist Is BornAnd so he labors tirelessly. At any time of the week he is in his office on the second floor of a revamped house downtown that serves as S.O.S.'s headquarters, researching legal issues or writing letters of persuasion to public officials. On his desk in his office are toiletries -- he typically works 60 hours a week, and during the height of the S.O.S. movement, he used to sleep on the office floor, sans pillow. Behind his desk, the floor is carpeted with various piles of paper, and there is only a rectangle cleared for his chair to scoot in and out.
On a recent Sunday, Bunch is wearing shorts and sandals, his brown hair tousled, but his handsome looks prevail. Later, he'll go swim at the Springs, but for now, this urban non-professional is behind his Macintosh, writing thank-you letters to the alliance's more generous donors. Last year was good to the group. S.O.S. took in $135,000, compared to $47,000 the year before and $61,000 in 1993, according to tax statements. While local talk show hosts have roundly accused Bunch of raising legal questions so he can financially benefit from S.O.S., it's clear that Bunch could make gobs more at a private law firm. Subtract S.O.S.'s $10,000 debt, the cost of one part-time secretary, mailings, newsletters, outside legal and research help, and not much remains. Last year, according to the statements, he made a base salary of $37,000, plus an extra $2,000 for bringing in new contributors.
It is clearly not money that motivates this San Antonio native. His dedication stems from his days as a boy scout in Arlington, where he frequently camped along the Brazos River. It stayed with him during his first efforts at activism after he moved to Austin fresh from Berkeley law school in 1986, when he joined the local chapter of EarthFirst!, the radical environmental group whose creed is "No compromise in defense of Mother Earth." Longtime EarthFirst! members recall that Bunch carried a few signs, but never participated in the famous cave-ins, never chained himself to trees, but instead focused on research that helped get an endangered species listing for the black-capped vireo and various cave bugs in the late Eighties.
After a few years clerking for the city's first environmental law firm, Henry, Lowerre & Mason, Bunch landed a starring role in his first case in Austin as a litigant in 1988. With that lawsuit, things quickly changed for Bunch, and the city's environmental movement would never be the same. Bunch lost the case on appeal, but there was a larger significance. "It was then that I learned about how vulnerable and unique the aquifer is and about the native bio-diversity of the Hill Country," he recalls. "I decided I wanted to focus my efforts on it."
The Save Barton Creek Association had hired Bunch and fellow attorney David Frederick to sue the state highway department. The department had refused to accept federal money for the extension of MoPac over the aquifer, and the SBCA believed it was done in order to avoid the federal government's more stringent environmental regulations. Bunch's victory at the trial court level allowed the Barton Springs Edwards Aquifer Conservation District, which had intervened in the case, to negotiate a deal with the highway department whereby the department agreed to use additional environmental controls.
J.B. Ruhl, who represented the Mopac South Transportation Corporation as an intervener on behalf of the highway department, recalls that the case marked Bunch as an innovator. "Bill is very clever. He has a way of coming up with very novel arguments about the law," Ruhl says. "That's the mark of a good and tireless lawyer. You don't just sit around and wait, you make law."
It's the Springs, StupidBunch left Henry, Lowerre, & Mason to do just that, and within two years he had raised the stakes of the city's environmental movement. Though citizens had campaigned for more than two decades for a zoning ordinance that would strictly limit development over the aquifer, they had made little headway. But Bunch, with the help of his former wife, Helen Ballew, who was then the head of the Hill Country Foundation, united the city's environmental groups behind a common declaration in 1991: a position paper that called for a strict law to protect the aquifer, the forerunner to S.O.S.
The bold declaration challenged developers, who heretofore had regularly received waivers from the city's water-quality ordinances, but it also shook up the environmental community. The more conservative old guard, represented by the SBCA, did not respond well to this new kid on the block. Though the city's other environmental groups had signed the position paper, the SBCA refused. Longtime activist Mary Arnold, then a member of We Care Austin and now an SBCA member, believes the group felt their autonomy was at stake. "They needed the flexibility to work out other deals with developers," she says, and the proposed non-degradation ordinance would not have allowed compromise.
While SBCA members like Jackie Goodman helped Bunch draft S.O.S., and campaigned for citizens to enact it after the Austin city council had refused to do so, that position paper initiated undercurrents of harsh feelings between the SBCA and Bunch. Three years ago, Bunch committed a tactical blunder when he challenged Goodman's ascension to the Place 3 throne, persuading another environmental candidate to run against her. The move was perceived by some as arrogant. Goodman had donated years of work as an environmental advocate, slowly gaining the community's trust and backing. Bunch's candidate -- businessman Mark Tschurr -- was a newcomer to the city. Few were surprised when Goodman's experience afforded her an easy victory.
The tragedy for Bunch was that he had lost a powerful, potential ally on the council. After winning the seat, Goodman wouldn't meet with Bunch for a number of weeks, and when she finally came around, it was not without an air of mistrust. The divisions remain so deep that Goodman, normally open and convivial, wanted nothing to do with this article. Not surprisingly, Bunch further entrenched the rest of the SBCA's leadership against himself.
A Little Too GreenToday, many SBCA members are quick to criticize Bunch, but only five of those interviewed would allow their comments to be recorded, and all refused to be identified in print, reluctant to be known as the ones who portrayed the environmental movement as divided. These critics praise Bunch's devotion to protecting the springs, but say his over-reaching power grabs often exceed his grasp, and ultimately hurt the movement.
Some believe that Bunch inadvertently provided anti-S.O.S. attorney Roy Minton with the argument that allowed the smooth-talking, boot-wearing real estate lawyer to deal the S.O.S. ordinance its first-round, trial court defeat. "Bill Bunch has done as much to hurt the springs as Roy Minton," claims one SBCA member.
The incident dates back to mid-1992, when the developer-friendly city council made its infamous decision to delay the S.O.S. election by 90 days. Dozens of developers snuck in under the weaker ordinance still on the books, colloquially known as Comp I. To prevent the "midnight filers," Bunch brought an administrative challenge before the Texas Natural Resources and Conservation Commission (TNRCC), hoping the agency would invalidate Comp I, since Comp I had never received TNRCC approval. Many say they warned him that his plan would backfire, but Bunch forged ahead in his usual do-or-die manner.
During a hearing on the matter, not surprisingly, city staff testified that Comp I was a non-degradation ordinance. Also less-than-shocking was the conservative TNRCC's subsequent decision to uphold Comp I as valid. Though common knowledge says the ordinance is not non-degradation, Minton used staff's position and the TNRCC's validation to successfully argue in court that the city already had a protective ordinance on the books and didn't need S.O.S. In December, 1994, the court struck it down.
Bunch responds that it's "absurd" to blame his legal strategy for the loss before the Hays County trial court. "The city was already saying it was a non-degradation ordinance (before I made any motions). City staff were wrong-headed to defend Comp I," Bunch says. "We were excluded from arguing in the trial. (Bunch tried to intervene on S.O.S.'s behalf, but the judge would not allow it). If you want to blame the loss on anyone, blame it on the judge. That's what the court of appeals said."
The Court of Appeals did set things right for S.O.S. last July, when it upheld the ordinance as valid since its passage in 1992. But that victory may be hollow because Comp II -- the replacement ordinance put in effect after S.O.S. was first defeated in 1994 -- allowed developers who had filed under the stricter S.O.S. to re-file. Bunch spent the weeks following the July decision prevailing upon the council to adhere to the judge's ruling and enforce S.O.S. not just from now on -- which the council voted to do -- but also for the 20 months that Comp II was being enforced.
The council's ultimate decision not to force developers to re-file under S.O.S. will do irreparable harm to the aquifer, Bunch contends, since more than 70 development applications were awarded under Comp II. He adds that Comp II was never legally passed because it did not receive the six council votes necessary to repeal the citizen-initiated ordinance. He also says that under state law, S.O.S. should have remained in effect during the appeal.
But councilmembers have ignored Bunch's requests, explaining that reneging on promises made during the 20 months that S.O.S. was on appeal would only open the city to more lawsuits. "Thank goodness we don't take legal advice from Bill Bunch," Mayor Bruce Todd announced to the Austin American-Statesman.
Though Todd's lack of respect for Bunch's legal abilities comes as no surprise, even Bunch's friend and fellow fighter-for-the-cause Daryl Slusher remained unpersuaded on this point. In fact, Bunch went so far as to completely alienate his old pal Slusher, who subsequently refused to talk to Bunch for almost a month. Bunch had suggested to the freshman councilmember that he abstain from voting to uphold Comp II, even if he supported it. That way, Bunch argued, Slusher could prevent six councilmembers from voting for it. If only five councilmembers vote for Comp II, Bunch's argument that S.O.S. never had enough votes for a repeal would still be valid; and if he filed a lawsuit against the city, he'd still have a case. Slusher viewed the comment as a request for collusion against the very entity that he is now representing, namely the city, and cut off all communication with Bunch. Slusher, who was still open to persuasion when he was presented with Bunch's unsavory suggestion, subsequently dropped the issue.
Slusher, who says he has the utmost respect and admiration for Bunch and what he has done for Austin's environment, is on speaking terms with his friend again. He says the bottom line is not whether the 1994 council illegally enacted Comp II, but that Comp II has been on the books and enforced by the city. To change the law after the fact would make a mockery of the city's own law-making authority. That said, Bunch's only recourse is a lawsuit against the city, an option he is still considering.
Bunch may have committed another tactical error when he attempted to get the U.S. Fish and Wildlife Service to put the Barton Springs Salamander on the Endangered Species List. Instead of focusing on the fact that the agency missed its deadline for making a decision, Bunch's initial pleading requested that the federal judge order the agency to list the salamander. Opposing lawyers say that request breached the separation of powers, increasing the legal questions exponentially. As a result, the Department of Justice took extra interest, and the issue became not the missed deadline, but whether the salamander was endangered.
Strassburger & Price attorney Alan Glen says that his clients, the Capital Area Builders' Association and the National Homebuilders' Association, would not have attempted to intervene in the suit, as they did, if Bunch had simply focused on the missed deadline. In the end, the salamander was not listed. Bunch is still suing to force the listing.
"He could have had a lay-down case," asserts Glen. "But his broad pleading gave us an opportunity to focus on the facts. It was confrontation for no result. While he's bright and confident, he's zealous to the point of adversely affecting the interests he seeks to achieve."
Bunch responds that Glen is just expressing sour grapes: "We won that case completely. We got what we insisted, an order for final action."
That final action came last month when several state agencies, including the Texas Department of Transportation and the TNRCC, (never known as friends of the salamander), said they would cooperate to protect the dwindling numbers of amphibians.
No, Never, Nuh-UnhSBCA member Bert Cormack agrees that Bunch's zeal has at times hurt his own side. For example, as a member of the committee that formulated the Balcones Canyonlands Conservation Plan (BCCP) in the early 1990s -- a developer/environmentalist agreement to set aside Hill Country habitat in return for eased restrictions on developable land -- Bunch was the only member of 17 to consistently vote against the plan. The $50 million bond issue proposed to institute the plan lost narrowly at the county level, and Bunch, who many say actively campaigned against the bond's passage, is blamed for the subsequent scaling back of the plan that resulted in drastically less maintenance and preservation efforts.
Bunch "needs to see the big picture and understand when it's time to compromise," says Barbara Cilley, co-owner of the newsletter, Austin Analysis, and an active proponent of the BCCP. "If he were a mature leader, he would have said it's not perfect, but it's a compromise, and it's the best we can do."
Bunch says simply that critics are looking for a scapegoat, that he never publicly spoke for or against the bond election. As to why he didn't agree with the plan, he says it does not set aside enough habitat to preserve endangered species. "It's not my job to say pollution is okay," says Bunch. "If someone else wants to say that, let them. But it's not going to be me, and it won't be the S.O.S. alliance. Every deal that gets floated up is a nightmare painted as some pie-in-the-sky vision. I'm not going to stand at some groovy press conference and say there's peace and love in the land when there's not."
To Bunch's credit, he's been proven right on that point, specifically when Freeport-McMoRan and environmental groups sat down in 1993 to negotiate the development of the Barton Creek planned unit development (PUD). For months the two sides convened and offered proposals. In August, 1993, at a meeting of about 40 environmentalists that lasted until 2am, the community agreed to agree with Freeport CEO Jim Bob Moffett's general proposal. Bunch argued against it, so passionately that he became teary-eyed and choked up. He warned that Moffett could not be trusted, and the Springs would be put at risk by giving the New Orleans developer the go-ahead. Bunch's predictions were ignored, but sure enough, when Freeport brought their plan to the council, the company demanded even more development. The environmental community quickly withdrew their support, and a majority of the council, including even Mayor Todd, voted against the development proposal.
Still, Bunch's no-compromise principle is so intractable as to be legendary. Just last summer, when big-time developers and hard-core environmentalists were taking a six-week course simply to encourage discussion between the two sides, Bunch lasted less than one day. Nothing specific was at stake, but according to members who attended the communication sessions, Bunch walked out of the first meeting after he spotted Freeport's real estate lawyer, David Armbrust.
"Once again, the elements for wasting time were there, and the elements for good dialogue were not there," says Bunch. "Armbrust is a mouthpiece for Jim Bob. I'm not going to waste my time for something that developers are going to use for their own PR."
That stubbornness, the SBCA's Cromack complains, creates an inaccurate perception of the environmental community as closed to discussion and solution. "He polarizes the issues," says Cromack. And the other side retaliates in kind. Indeed, among development supporters, Bunch has come to epitomize mindless knee-jerk liberalism. A few years ago, one real estate lawyer erected a tombstone with Bunch's name on it for a front-yard Halloween display. And radio talk show host Paul Pryor once said he wanted to rip off Bunch's head and pour creek water down his throat.
And who can forget the punishing blows Austin was dealt by the legislature last session, after lobbyists for Moffett and Circle C developer Gary Bradley successfully persuaded lawmakers to free the Barton Creek and Circle C developments from the city's environmental regulations. Even Take Back Texas founder Marshall Kuykendall credits Bunch with inspiring him to grab political power and push through the state's first property rights legislation, known as the "takings bill." Kuykendall says the energy of the property rights movement was partly in response to Bunch's efforts to get the U.S. Fish and Wildlife Service to declare 33 Texas counties as golden-cheeked warbler habitat.
Our Man BillOf course, it's not surprising that the rich and powerful lobbyists, lawyers, and real estate developers hate Bunch. It's testimony to the power he wields, and the fear he strikes in the hearts of those who wish to profit from Austin's natural resources. And most environmentalists would have it no other way. To them, Bunch's unbending principles, unwillingness to compromise, and tireless efforts to protect the aquifer, qualify him as a local hero. In their minds, Bunch represents all that is admirable about Austin, and what sets it apart from other Texas cities.
"Bill Bunch has been the one who has continually driven the environmental movement forward," adds Slusher. "He's taken the struggle to a new level since he's been involved."
Since Bunch has been involved, the environmental movement has achieved significant victories, gaining national recognition and significant bargaining power, as witnessed in the 2-1 passage of S.O.S., and the fact that a relatively strong environmental majority has sat on the council since 1993. Growth in the southwest quadrant of the city has steadily decreased from 23% of the city's real estate market in 1989 to 14% in 1994 and 13% in 1995. Moreover, major manufacturing companies are selecting East Austin over the Hill Country, no doubt because of the resistance they can expect from the alliance. "The status quo is uncontrolled sprawl and pollution and when you try to fix that, then hell yes, the other side is going to react," Bunch says.
Bunch continues to find new ways to slow the destruction of the paradise he holds dear. During a recent Saturday afternoon at Barton Springs, Bunch and neighborhood activist Larry Akers met behind the diving board to come up with a strategy to halt the construction of Austin Community College's (ACC) new campus over the aquifer. Akers pointed out that the private vote taken by ACC trustees to build the campus on the controversial Shadowridge site had been posted as a "real estate matter," leaving the public in the dark, and violating the Texas Open Meetings Act. Bunch suggested that the alliance hire attorney Phil Durst to sue ACC. Last week, Durst asked for and got an injunction enjoining the college from closing on the land.
Effective, innovative, clever. Strategies like the Shadowridge case show Bunch at his best. It's the other Bill Bunch, the one that leaps before he looks, blinded by his passion, that friends and enemies alike say hurts the movement. Therein lies the paradox that is Bill Bunch. "He's so fiercely committed that he is sometimes percieved as self-righteous," says Slusher. "It sometimes works against him and hurts his own cause."
But then, as Steve Beers of the Sierra Club, who admits that Bunch may be too "aggressive," concludes, "He's not out to win a popularity contest. He's out to save the Springs."