Jonathan H. Adler on Robert F. Kennedy Jr. on National Review Online
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December 03, 2003, 8:40 a.m.
Kennedy’s Crimes Against Fact
RFK Jr. misfires.

By Jonathan H. Adler
America's environmental-lobbying establishment has declared war on the
Bush administration. With a series of reports, websites, and publicity
campaigns, the nation's leading environmental-activist groups seek to
tar
President Bush as environmental-enemy number one, and pave the way for
a
Democratic victory in 2004. Earlier this fall, a group of former
Clinton-administration environmental officials launched
Environment2004, a
new group that plans to raise funds to attack the Bush environmental
record in key battleground states. This openly partisan effort will
complement anti-Bush campaigns by the Sierra Club, the League of
Conservation Voters, and other environmental-activist groups. In all
these
campaigns, environmental activists will continue to propagate the myth
that the Bush administration is "waging war on the environment" and
gutting federal environmental law.



FANTASYLAND
The latest, and perhaps most egregious, example of anti-Bush
environmental
fear-mongering is an essay by Robert F. Kennedy Jr. in the December 11
Rolling Stone, "Crimes Against Nature." In it, Kennedy accuses Bush of
"a
ferocious three-year attack" on environmental protection involving
"more
than 200 major rollbacks of America's environmental laws." These
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 environmental-activist attacks
on
the Bush-administration environmental record, Kennedy's screed is more
fantasy than fact.
One would think that Kennedy, an environmental lawyer with the Natural
Resources Defense Council and law professor at Pace University, is an
expert in environmental law. No stranger to existing regulations,
Kennedy
regularly litigates on behalf of river communities to enforce state
and
federal standards in court. Yet his essay is riddled with
misstatements,
gross exaggerations, and outright falsehoods, combined with repeated
ad
hominem attacks on administration officials. Although Kennedy claims
his
article was "rigorously fact checked," it remains replete with errors.
"Crimes Against Nature" paints a shocking — that is, shockingly
inaccurate
— picture of Bush environmental policy.
Some of Kennedy's mistakes are rather minor. For instance, he claims
the
administration's "Clear Skies" program "repealed key provisions of the
Clean Air Act" and "allows more emissions." Yet the "Clear Skies"
initiative has done no such thing — "Clear Skies" has not been
approved by
a committee, let alone signed into law. Were "Clear Skies" to become
law
it would "repeal" some portions of the Clean Air Act, but only to
replace
them with new provisions to control utility emissions of sulfur
dioxide,
nitrogen oxide, and mercury. More importantly, whether or not "Clear
Skies" ever becomes law, air pollution will continue to decline as it
has
for the past few decades.
OUT OF THIN AIR

If Kennedy's errors were confined to such common misstatements, his
article would be no big deal. Alas, many of Kennedy's crimes against
fact
are quite serious. Right off the bat, Kennedy charges that 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 and provisions, 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 no
longer be 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 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, whether under
the
Clean Air Act or any other federal law. To the contrary, Congress has
voted against such regulations time and again, including when the
Senate
voted 95-0 against the Kyoto Protocol.
Kennedy accuses the administration of proposing to "remov[e] federal
protections for most American wetlands and streams." Here again
Kennedy is
all wet. 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 the EPA claimed they could regulate such lands due to
the
occasional presence of migratory birds. Such a regulation, the Supreme
Court held, exceeded the scope of the Clean Water Act and may even 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. After all, 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 only curtail federal authority 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.
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" the Bush administration's
refusal to embrace Clinton initiatives, many of which had yet to take
effect when Bush entered office. Kennedy claims Bush "weakened
efficiency
standards" for air conditioners because the Bush administration
rejected a
proposed Clinton regulation to tighten energy use requirements for new
ACs
by 30 percent. Yet the Bush administration went ahead and tightened AC
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 acknowledge, the Bush
transportation
department announced a modest tightening of fuel-economy rules for
cars
and light trucks (including SUVs) alike. 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."
And the fact-checkers should not have stopped there either. He charges
that 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. 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.
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
only became infamous 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 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
that
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 fails to mention that the administration rejected Ken
Lay's
most preferred policy: federal regulation of carbon dioxide.
WHERE'S THE BEEF?
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 has no talking
points
or crib sheet, let alone a formal response for distribution. It is as
if
decision-makers in the administration believe that if they ignore
their
environmental critics, they will just go away. Fat chance.
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.
— NRO Contributing Editor Jonathan H. Adler is an assistant professor
of
law at the Case Western Reserve University School of Law.