Environmental protection in America is under siege–at least that is what some claim. A former Clinton Administration official warns of an “endless assault on basic environmental protections.” Legal safeguards for environmental values are further eroding in federal courts, others charged at a recent panel on “The Erosion of Environmental Protection.” If current trends continue, the story goes, we will reverse the tremendous environmental gains of the last forty years and cause irreparable ecological damage. This tale is repeated time and again by environmental activists and many in the media. The only problem is that the story isn’t true. There is no widespread “erosion” of environmental protection, let alone an “endless assault.”
Like those who have cried “wolf” over impending resource exhaustion or imminent environmental catastrophes, the activists howling about the purported rollback of environmental protection have it all wrong. There are real environmental problems, to be sure, and there are plenty of reasons to be dissatisfied with existing environmental policies, too. But claims of widespread “erosion” and an “endless assault” are simply false. There is little evidence to support such claims. Whether one looks at changes in environmental policy over the past three years, or even the past twenty years, there is no “assault” on “basic environmental protections,” endless or otherwise.
When environmental activists make such claims, their primary target is the Bush Administration. The League of Conservation Voters and Natural Resources Defense Council, among others, have published lengthy reports purporting to document the anti-environmental record of the current administration. Yet the charges do not hold up under scrutiny. Despite the heated rhetoric, the administration has made no significant changes to the basic environmental laws. The federal standards governing air quality, water pollution, and endangered species remain in place, and there is no proposal to do otherwise. While some in the administration may believe these laws are overdue for an overhaul–as do I–there has been no effort to make such changes come about.
Where the Bush Administration has sought to change existing environmental rules, in most cases the changes have been relatively minor. Whereas the Clinton Administration sought to ban all snowmobiles from Yellowstone National Park, Bush’s Interior Secretary Gale Norton adopted a compromise position under which snowmobile tourism would continue, but only for modernized vehicles that are cleaner and quieter. The Bush Administration has sought to reverse a handful of other Clinton Administration initiatives, but here again environmentalist claims are overstated. Reversal of the Clinton administration’s policies on so-called “roadless areas” eroded environmental protections all the way back to December 2000. This hardly amounts to an “assault” on basic environmental protections.
Admittedly, the Bush team has pursued federal environmental regulation less aggressively than their predecessors. George Bush is no Al Gore. Yet contrary to the impression often left by the news media, the Bush administration has been quite active, adopting new regulations governing gasoline sulfur content, off-road vehicle emissions, disinfectant by-products in drinking water and even air pollution from school buses. In addition, the administration signed a major international treaty governing the use of persistent chemical pollutants, increased spending for the Land & Water Conservation Fund, and continues to propose and consider new, far-reaching environmental regulations. Not all of these policy decisions have been wise in my view, but they hardly create an “anti-environmental” track record.
None of this is meant to suggest that President Bush is the “environmental president.” There are many valid environmental grounds upon which to criticize current administration policy. The Bush team has squandered opportunities to introduce more flexibility into existing environmental rules and has shown a surprising lack of interest in encouraging state-level environmental innovation. At the same time, there has been no significant effort to reconsider existing policies that contribute to environmental harm, and few initiatives to address emerging environmental concerns. Fishery conservation is one of the most serious environmental problems of the day, yet it has scarcely registered on the Bush Administration’s radar screen. These are all valid criticisms, but they do not support the charge, made by Presidential hopeful Joseph Lieberman among others, that Bush has the most “anti-environmental” record in history.
If the Bush administration is not gutting environmental regulations, what about Congress? Here the claim of environmental rollback is even weaker. Since the Republican takeover of congress in 1994 there has been no legislative amendment reducing environmental regulation of any significance–none, zero, zilch, nada. In that period Congress has revised environmental laws governing drinking water, food quality, and the cleanup of abandoned waste sites. Yet in none of these cases can Congress be accused of “weakening” or otherwise eroding environmental protection. To the contrary, in each case one can argue that Congress increased the protectiveness of federal law.
Of course, this does not mean that Congress has a particularly green record. To the contrary, the legislature continues to fund all manner of federal programs that enrich special interests at significant environmental cost. Federal subsidies for agriculture, energy production, irrigation, and water use are economically wasteful and extract a significant environmental toll. Yet the persistent funding of such longstanding federal programs does not constitute an “erosion” of environmental efforts. By the same token, Congress’ failure to revise outdated environmental laws is worth criticism, but it is hardly tantamount to “regulatory rollback.”
So, if there is no significant erosion of environmental protection by the executive or the legislative branch, what about the courts? Could the alarmist claims of threatened ecological decline are justified by anti-environmental actions in federal courts? Here again, the charges are without merit. Over the past decade there have been numerous court cases and decisions with the potential to curtail environmental regulations, but that potential was never fulfilled. With one potentially significant exception, courts have turned away attacks on federal environmental regulations, even where such attacks have been on strong legal ground.
Many environmentalists feared the Supreme Court’s 1995 decision striking down a federal law for exceeding the scope of Congress’ power to regulate interstate commerce spelled trouble for many environmental rules. Since then, however, federal appellate courts have rejected each and every commerce clause challenge to federal environmental laws. In 1992, in Lujan v. Defenders of Wildlife, the Supreme Court announced a rule that appeared to limit the ability of environmental groups to sue for the enforcement of environmental laws in federal court. Yet in a subsequent case, Friends of the Earth v. Laidlaw, the Court undid the bulk of Lujan‘s limitations. After the Supreme Court’s decision in Lucas v. South Carolina Coastal Council environmentalists feared that that courts would find many federal regulations to constitute unconstitutional regulatory takings of private property. Subsequent Supreme Court decisions, including one just last term, made clear the Lucas rule is rarely applicable to federal environmental laws.
The only recent Supreme Court decision that actually curtailed federal environmental regulation is Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). Here the Court found that the Clean Water Act did not authorize federal regulation of isolated waters, such as ponds formed in abandoned gravel pits that had no hydrological connection to navigable waters of the United States. Without a doubt, this decision trims federal authority to control water pollution and wetland alteration, but it hardly amounts to a wide bore assault on environmental protection. Moreover, the same court that trimmed the reach of federal regulations in SWANCC ratified expansive interpretations of the Endangered Species Act and Clean Air Act. Taken as a whole, it is difficult to argue that the current Supreme Court is somehow “anti-environmental” or “eroding” environmental law.
In sum, activist claims of an “anti-environmental assault” are grossly overstated. The claimed “erosion” simply isn’t, and those who charge otherwise know it. There may be a political advantage to be had by calling the Bush Administration “anti-environmental,” and environmental fear-mongering may fill activist group coffers, but neither charge has much relation to the truth.
While there is no “erosion” of environmental protection, this is no cause for complacency. As stated at the outset, there are ample grounds upon which to be dissatisfied with existing environmental laws. Too often, federal environmental regulations impose substantial economic costs to produce minimal environmental benefits. Worse, many federal rules are impediments to continued environmental progress. Today most environmental trends are positive in the United States, but there is no guarantee such trends will continue.
Reconciling environmental aspirations with economic priorities will continue to be a challenge in the years to come. Many existing environmental laws have outlived their usefulness. Designing the next generation of environmental policies will not be easy. Any such efforts must begin with a sober and accurate assessment of current policies and trends. Alarmist claims that environmental protections are under assault, on the other hand, are of no help.
Jonathan H. Adler, a member of the America’s Future Foundation Board of Directors, is assistant professor of law at Case Western Reserve University, and a contributing editor at National Review Online. This article is based on remarks delivered at a panel on “The Erosion of Environmental Protection,” at the national convention of the American Constitution Society in Washington, D.C., August 1, 2003.
Source: AFF Doublethink Online | Andrew Stiles
Source: AFF Doublethink Online | Kathlyn Ehl