America’s environmental-lobbying establishment has declared war on the Bush administration. With a series of reports, Web sites, and publicity campaigns, the nation’s leading environmental activist groups have sought to tar President George W. Bush as public enemy number one and pave the way for a Democratic victory this year.
In 2003, a group of former Clinton administration environment officials launched Environment2004, a new group that raises funds to attack the Bush environmental record in key battleground states. This openly partisan effort has complemented anti-Bush campaigns by the Sierra Club, League of Conservation Voters, and other environment activist groups. In all these campaigns, activists continue to propagate the myth that the Bush administration is “waging war on the environment” and gutting federal environmental law.
Perhaps the most egregious example of anti-Bush environmental fear-mongering is the series of attacks by Robert F. Kennedy Jr. in the past year. Beginning with an article in the December 11, 2003 issue of Rolling Stone, “Crimes Against Nature,” and continuing in 2004 with publication of expanded attacks in a full-length book bearing the same name, Kennedy accuses Bush of “a ferocious three-year attack” on environmental protection involving “more than 200 major rollbacks of America’s environmental laws.”
Those policies “are already bearing fruit,” Kennedy alleges, “diminishing standards of living for millions of Americans.” In Kennedy’s world, a phalanx of former corporate lobbyists conspires to “eviscerate the infrastructure of laws and regulations that protect the environment” and “eliminate the nation’s most important environmental laws by the end of the year,” all for narrow corporate gain. In Kennedy’s world, the Bush administration’s “corporate cronyism” is comparable to the “rise of fascism in Europe in the 1930s.”
If reality bore any relation to Kennedy’s fantasy, there would be reason for concern. Yet as with so many recent attacks on the Bush administration’s environmental record, Kennedy’s screed is more fantasy than fact.
Facts from Thin Air
Kennedy charges the Bush Environmental Protection Agency (EPA) “excused” coal-burning power plants “from complying with the Clean Air Act.” This is simply false. The administration revised federal regulations governing when older industrial facilities must install modern air-pollution equipment to allow for upgrades and repairs without increasing emissions above permitted levels.
In practice, these changes will enable facilities to undertake efficiency improvements that in many cases will produce a net decrease in polluting emissions. Yet even assuming these reforms to the “new source review” regulations effectively exempt power plants from the upgrade requirements, power plants and other industrial facilities remain subject to numerous regulatory requirements under the Clean Air Act, including caps on emissions of sulfur and nitrogen oxides, controls to attain ambient air-quality standards, and mandates designed to prevent “upwind” facilities from causing air-pollution problems in “downwind” states, among others.
Kennedy claims the administration “redefine[d] carbon dioxide” to be no longer considered a pollutant subject to regulation under the Clean Air Act. Yet carbon dioxide has never been regulated as an air pollutant under federal law. Clinton EPA officials suggested carbon dioxide could be so regulated under the act, yet they took no action to regulate such greenhouse gases even when faced with potential litigation from environmental groups.
Contrary to Kennedy’s suggestion, Congress never authorized federal regulation of carbon dioxide and other greenhouse gases, under the Clean Air Act or any other federal law. To the contrary, Congress has voted against such regulations time and again, most notably when the Senate voted 95-0 against the Kyoto Protocol.
All Wet on Wetlands
Kennedy accuses the administration of proposing to “remov[e] federal protections for most American wetlands and streams.” In 2001, the Supreme Court struck down federal regulations that purported to regulate isolated wetlands and other waters not connected to the navigable waters of the United States. The U.S. Army Corps of Engineers and EPA had claimed they could regulate such lands because of the occasional presence of migratory birds. Such a regulation, the Supreme Court held, exceeded the scope of the Clean Water Act and may be unconstitutionally broad.
In response, the administration proposed revising federal regulations to ensure their consistency with the Court’s ruling. Failure to do so would be irresponsible. Federal regulations cannot protect wetlands if they get struck down in court.
The proposed changes, which cannot become final until after a period of public comment and review, come nowhere close to “removing federal protections for most American wetlands and streams.” To the contrary, if adopted they would curtail federal authority only on the margins. Isolated wetlands, for instance, represent a small fraction of the approximately 100 million acres of wetlands in the United States.
Moreover, just because a wetland or stream is not regulated by the federal government does not mean it is unprotected. Most states have their own wetland regulations, and many states regulate wetlands more stringently and more effectively than the feds.
“More than 200 Major Rollbacks”
Although Kennedy accuses the Bush administration of “more than 200 major rollbacks,” he identifies few significant changes to environmental law. More often, Kennedy labels as a “rollback” a Bush administration refusal to embrace Clinton initiatives, many of which had yet to take effect when Bush entered office.
Kennedy claims, for example, Bush “weakened efficiency standards” for air conditioners because the administration rejected a proposed Clinton regulation to tighten energy use requirements for new air conditioners by 30 percent. Yet the Bush administration went ahead and tightened air conditioner efficiency standards nonetheless–just not as much as the Clinton administration had proposed. Such a “failure” to adopt more stringent regulations can hardly be characterized a “major rollback.”
Kennedy is upset about the administration’s purported effort to “scuttle” automobile fuel economy standards and to “allow SUVs to escape fuel-efficiency minimums.” Yet the administration has done nothing to loosen automobile fuel economy standards or exempt SUVs. To the contrary, as Kennedy’s colleagues at the NRDC have acknowledged, the Bush transportation department announced a modest tightening of fuel economy rules for cars and light trucks (including SUVs). The increase may be less than Kennedy would like–though why a family man like Kennedy would support federal regulations that reduce vehicle size and crashworthiness is beyond me–but it is hardly an environmental “rollback.”
Kennedy’s fact-checkers should not have stopped there, either. He charges the 104th Congress launched a “stealth attack” on environmental laws, “eschewing public debate” and adopting riders to appropriations bills. Yet not only have such “appropriations riders” been commonplace for years–many of the same provisions adopted by the 104th Congress were initially enacted by the Democratic-controlled 103rd–but they were extensively debated on the floor of the House.
Similarly, Kennedy is apoplectic that the Bush White House reviews environmental reports before they are issued, yet this has been the standard operating procedure for years.
Old Myths, Ad Hominem Attacks
Kennedy also repeats the myth that in the 1960s, “Cleveland’s Cuyahoga river exploded in colossal infernos.” In fact, there was a small fire under a bridge on the Cuyahoga in 1969. It was a minor event. The fire lasted for less than 30 minutes and was never caught on film.
The event became infamous only several weeks later, when Time magazine noted the fire alongside a shocking photo of a river ablaze from the early 1950s. By 1969, the problem of combustible industrial rivers–once a common environmental concern–was a thing of the past. No matter. The image of a burning river was seared on the nation’s environmental consciousness, and the story gets retold–albeit wrongly–time and again.
When not polluting the facts, Kennedy spews ad hominem charges against Bush administration officials. Kennedy is aghast, for example, that the administration would hire individuals who have worked for–gasp!–corporations, and suggests they remain beholden to their former corporate masters.
Yet unless Kennedy wishes to claim that such employment should permanently disqualify individuals from holding public office, he must rest his case on what Bush officials are actually doing in office, and it is here Kennedy’s breathless accusations simply fall apart.
In attacking the administration’s energy plan (which is certainly worthy of criticism), Kennedy invokes the administration’s relationship with Enron CEO Kenneth Lay, but then he fails to mention the administration rejected Lay’s most preferred policy: federal regulation of carbon dioxide emissions.
Enemy of Free Markets
Kennedy’s attack on the Bush environmental record is not the first such fusillade to misfire, and it will not be the last. The administration’s environmental critics have a relatively easy time misrepresenting the Bush record because there is little effort to set the record straight. Many journalists uncritically repeat environmentalist attacks, and the Bush administration’s defense of its own environmental policies has been nothing short of pathetic.
Over a week after Kennedy’s Rolling Stone article first circulated, the administration still had no talking points or crib sheet, let alone a formal response for distribution. It was as if decision-makers in the administration believed that if they ignored their environmental critics, they would just go away. This is unlikely to occur.
Although Kennedy claims to be a defender of “free-market capitalism,” neither his article nor his book provides much evidence he understands economics. Whatever the merits of minimum wage laws and social welfare programs, they’re hardly “free market”; neither are federal pollution control laws.
Similarly, while most economists celebrate improvements in worker productivity, Kennedy laments that coal companies can produce just as much coal with only 12 percent of the workers they required in 1960. Given his concern for worker safety, one would think Kennedy would at least cheer the fact that far fewer laborers are exposed to the risks of coal mining, not to mention the immense economic benefits of the change.
Kennedy repeats the nostrum that “conservation is indeed the fastest way to reduce our dependence on foreign oil” and suggests an eight-mile-per-gallon increase in fuel efficiency “would eliminate the need for all Persian Gulf imports.” This is nonsense: Even dramatic reductions in energy use will do little to reduce the percentage of oil that comes from overseas. America imports oil because overseas supplies are substantially less expensive than oil produced at home.
Reduce domestic oil consumption on the margin, which is all Kennedy’s proposed policy would do, and the result will be a decline in consumption of domestic oil. Imports will scarcely be affected. Nonetheless, Kennedy claims the “savings” from such a policy “would help balance our trade deficit and provide a permanent economic stimulus package.”
Ambiguous Environmental Record
One problem with defending the Bush environmental record, however, is that it is not so clear what there is to defend. While the administration has largely avoided calling for grand new federal programs and another round of federal regulations, it has made little visible effort to rethink and reform existing environmental laws. For all the talk of “market-based” reforms and a “new environmentalism,” there has been little action.
While it is relatively easy to poke holes in an error-filled screed like Kennedy’s “Crimes of Nature,” it is difficult to write a proactive defense of the administration’s positive agenda, as it is not clear such an agenda exists. As a result, the administration’s allies are permanently on the defensive, merely responding to groundless attacks. In the end, the administration’s lack of a positive environmental agenda is not just bad policy, it’s bad politics as well.
Jonathan H. Adler ([email protected]) is an assistant professor of law at the Case Western Reserve University School of Law. Much of the material in this article first appeared in articles he wrote for National Review Online (http://www.nationalreview.com).