Conservative Principles for Environmental Reform
Adler, Jonathan H., Duke Environmental Law & Policy Forum
Major environmental policy reform is long overdue. The current regulatory architecture was erected in the 1970s. Since then meaningful reforms have been few and far between. A few reforms and regulatory expansions were adopted in the 1980s, (1) and Congress enacted significant reforms to the Clean Air Act in 1990. (2) Only the most minor environmental bills have been enacted since then. (3)
In 1996, Richard Stewart observed that conventional environmental regulation was a "failing paradigm." (4) At the same time, analysts at Resources for the Future concluded that America's environmental regulatory system was "deeply and fundamentally flawed." (5) Other contemporaneous reviews of federal environmental regulation reached similar conclusions. (6) Yet, little has happened. Despite these and other calls for reform, the environmental regulatory system remains largely the same as it did some twenty years ago. (7)
The nation's environmental regulatory architecture may not have changed significantly over the past few decades, but the range of environmental problems has. Regulatory measures designed to address the industrial pollution of the twentieth century are poorly suited to address the more complex and difficult challenges of the twenty-first.
There is an urgent need to debate the future of environmental protection in this country. If the debate is to be productive, it needs to span the political spectrum. Therein lies a problem: It is unclear whether many on the political right are prepared to engage in serious policy discussion about the future of environmental policy. While there is no shortage of complaints about centralized government regulation, few are willing to suggest alternatives. Those on the political right have largely failed to engage in meaningful discussion about how the nation's environmental goals may be best achieved. (8) Perhaps as a consequence, the general premises underlying existing environmental laws have gone unchallenged and few meaningful reforms have been proposed, let alone adopted.
This Essay seeks to outline the foundation of a conservative alternative to the conventional environmental paradigm. (9) After surveying contemporary conservative approaches to environmental policies, this Essay briefly sketches some problems with the conventional environmental paradigm, particularly its emphasis on prescriptive regulation and the centralization of regulatory authority in the hands of the federal government. The Essay then concludes with a summary of several environmental principles that could provide the basis for a conservative alternative to conventional environmental policies.
I. A MISSING VISION
Is there a conservative vision of environmental policy? It is a good question. For quite some time, there have been two dominant responses from the political right to the expression of environmental concern: One is a moderate "me-too"-ism, the other is a reflexive opposition. (10) The first acknowledges the importance of environmental concerns and endorses whatever environmental goals are on the table but calls for policies that can achieve these goals at less expense. The "me-too" moderate does not challenge prevailing environmentalist priorities nor question the need for more regulation. For the "me-too" moderate, the only problem with environmental protection is that it costs too much, and it is perhaps not subject to a sufficiently rigorous cost-benefit analysis.
Moderate "me-too"-ism is pragmatic to a fault and seeks to achieve the same goals for a little bit less, even if it takes a little bit longer. This approach is necessarily unsatisfactory and anything but inspiring. President George H.W. Bush adopted this approach, promising to be the "environmental president" and supporting the 1990 Amendments to the Clean Air Act, (11) yet environmentalist leaders still supported his opponent in 1992. (12) If environmental protection is that important, it does not make much sense to nickel-and-dime environmental efforts. …