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Kennedy’S Crimes Against Fact
RFK Jr. misfires.


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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.

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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.



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