Anything Industry Wants: Environmental Policy under Bush II
Parenteau, Patrick, Duke Environmental Law & Policy Forum
I would like to begin with two caveats. First, this critique is not intended to be an exhaustive analysis of the Bush Administration's entire environmental record. Rather, the purpose is to illustrate, through selected examples, how this administration abuses science, law, and democratic processes to make bad public policy. Second, I make no claim to objectivity here. My view is that this administration has compiled the worst environmental record of any administration in history. To the extent others see it differently, so be it.
From day one, the Bush Administration has set about the task of systematically and unilaterally dismantling over thirty years of environmental and natural resources law. It started with the "Card Memo" (1) and the Anything But Clinton ("ABC") rule, which first quarantined and then quietly put to sleep, scores of regulations issued by the previous administration--everything from arsenic in drinking water, to fuel efficiency standards, to snowmobiles in Yellowstone National Park. (2) Since then, the anti-Clinton reaction has grown into a full-fledged ideological crusade to deregulate polluters, privatize public resources, limit public participation, manipulate science, and abdicate federal responsibility for tackling national and global environmental problems.
In over thirty years of practicing environmental law, I have not seen anything like this. Not even the historic battles with the likes of Interior Secretary James Watt and EPA Administrator Anne Burford Gorsuch in the Reagan Administration can compare. The current administration is far more clever, disciplined, and deceptive in what it says and does than its predecessors. It has also been more effective, due to a Republican-controlled Congress, an enfeebled Democratic Party, a distracted public, and an ambivalent media. Because of this environment, there has not been an open debate on the future of environmental policy. Rather, the Bush Administration has been able to make sweeping environmental changes through a stealth campaign, masquerading under sly euphemisms like "Healthy Forests," "Clear Skies," "No Net Loss," "Stewardship Contracts," and "Sound Science."
While the American public has been preoccupied with the issues of jobs, health care, and the "War on Terrorism," the Bush Administration has enjoyed a rare window of opportunity to roll back environmental policies and regulations. These changes were made possible because there was no coherent opposition party in Congress and little public knowledge about what these changes actually meant for the protection of public health and the environment. Some of the more egregious actions have been blocked in federal court, but litigation takes time, and there is a limit to the number of cases environmentalists and concerned states can handle. Meanwhile, the administration seeks to imprint its conservative ideology on the courts through its controversial judicial nominations and "recess appointments" to put people on the bench who have been rejected in the Judiciary Committee and Senate confirmation process. (3)
Admittedly, there have been some positive steps taken. For instance, there has been support for the environmental provisions of the Farm Bill, (4) and there have been stiff fines in a few high profile enforcement cases. (5) There has also been partial funding for the Land and Water Conservation Fund, opposition to "regulatory takings" claims in the Supreme Court (most notably Tahoe Sierra (6)) and the adoption of rules cracking down on non-highway, diesel emissions. (7) Some of these accomplishments are no doubt due to political realities; environmental issues still matter to many voters. Nevertheless, some credit is due to the Bush Administration, regardless of the suspected motivation.
Unfortunately, Bush's few trees of environmental redemption are covered by a forest of bad policy. Even a cursory review of the record reveals the pattern of an administration looking to change environmental law by fiat, collusion, and deception. …