Polluting The Truth
RFK Jr. continues to distort the Bush administration's environmental record.


Jonathan H. Adler

I have been quite critical of Robert F. Kennedy Jr.’s attacks on the Bush administration’s environmental record. Where Kennedy accuses Bush of “crimes against nature,” I accuse Kennedy of “crimes against fact.” While I believe there are many reasonable grounds upon which to criticize the administration (e.g., the energy bill), Kennedy’s attacks have been wildly inaccurate and over-the-top.

Alas, Kennedy’s reign of environmental error has continued with the promotion of his new book, Crimes Against Nature: How George W. Bush and His Corporate Pals Are Plundering the Country and Hijacking Our Democracy.

Earlier this month, Kennedy and I were guests on NPR’s Talk of the Nation’s “Science Friday” program. On the show, Kennedy continued his campaign of environmental untruths; among his more outrageous claims was the following:

If even a fraction of the current laws and legal changes that are proposed by the Bush administration are implemented by this time, you know, next year, we will have effectively no significant federal environmental law left in our country. That’s not exaggeration. . . . That is not hyperbole. It is a fact. Many of our laws will remain on the books in one form or the other, but they’ll be unenforceable. And, you know, we’ll be like Mexico, which has these wonderful, poetic environmental laws, but nobody knows about them and nobody complies with them because they can’t be enforced.

This is simply false.

Not a single major environmental statute has been revised during the Bush administration, and there has been no serious legislative proposal to scale back existing laws. Nor have Bush regulatory initiatives had the effect Kennedy claims. Nothing the Bush administration has done or proposed alters the federal air-quality standards all metropolitan areas are required to meet. Nothing lessens existing limits, put in place by the Clean Water Act, on pollution discharges into rivers and streams. Nothing weakens the regulatory force of Section 9 of the Endangered Species Act, which limits the modification of species habitats on private land. Nothing removes any of the drinking-water standards imposed under the Safe Drinking Water Act. Nothing eviscerates the Byzantine regulatory requirements imposed on the transportation, storage, and disposal of hazardous wastes under the Resource Conservation and Recovery Act. And so on. In short, nothing the Bush administration has done guts environmental law or otherwise renders it “unenforceable.”

Even if the Bush administration were seeking to end the enforcement of federal environmental law, most statutes would remain enforceable by private “citizen suits” in federal court. Environmental activists have long used such suits to ensure that federal agencies comply with their legal obligations. So, for example, if the Bush administration refused to limit private land use under the Endangered Species Act, environmental groups could still sue to force the federal government’s hand. Many current rules, including the revised National Ambient Air Quality Standards adopted by Clinton EPA head Carol Browner, were the result of such litigation. Kennedy himself has been actively involved in such suits. Like it or not, these provisions severely limit the ability of the Bush administration–or any administration–to remake federal environmental law unilaterally.

In some areas the Bush administration has arguably “rolled back” pre-existing federal regulations. Yet many of the affected rules, such as the controversial Clinton-administration “roadless area” policy, were barely in place by the time Bush took office. Revoking a handful of Clinton-administration policies is hardly the same as rolling back 30 years of environmental protection. The Bush administration has proposed streamlining the process some government agencies, including the military, go through under the National Environmental Policy Act. These changes may “weaken” the act, but they hardly render it “unenforceable.”

The Bush administration also considered–and then set aside–a proposal to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. This proposal was prompted by a recent Supreme Court decision holding that some federal rules exceeded the scope of federal regulatory authority, and could have made clear that direct regulation of some isolated waters and wetlands are out of federal hands. The effect of this rule could have been significant, although many of the affected areas would have remained protected by state or local rules. In any event, the proposal was never adopted–so there’s no Bush-administration “rollback” here at all.

On NPR, Kennedy only offered one example of a Bush-administration proposal to substantiate his thesis, but here too his shot is off the mark. Kennedy charged that the Bush administration is promoting “takings” legislation that would provide “constitutional protection to the right to pollute.” Such legislation, Kennedy claimed, “would abolish in one fell swoop literally all federal environmental law, because government couldn’t afford to pay people not to burn toxics into the air or not to fill wetlands or not to put pollutants into the waterways.” Kennedy is wrong here on several counts.

First, the Bush administration has not lifted a finger to advance takings legislation. The Natural Resources Defense Council’s website on the Bush administration’s environmental record, to which Kennedy repeatedly refers, allegedly identifies some 400 actual or proposed environmental “rollbacks.” Yet a search for “takings” does not pull up a single item. This is for good reason: Such legislation has not been seriously debated in Congress for six years.

Second, the “takings” legislation that Congress considered–again, long before Bush took office–would not have the impact Kennedy suggests. The various takings bills that were proposed largely codified existing court precedent applying the Fifth Amendment’s admonition that government may not take private property for public use without paying just compensation. These bills included so-called “nuisance exceptions” to make clear that landowners are not entitled to compensation when federal regulations prevented them from engaging in polluting activity or otherwise harming their neighbors. (For more on these bills see here.) So even if the Bush administration was advocating such bills, they would not have the effect Kennedy claims.

There is no doubt that the Bush administration has not regulated anywhere near as aggressively as a Gore administration would have. The Bush team put the breaks on several Clinton-administration environmental initiatives and adopted several new rules that were less stringent than Clinton’s team had proposed. Some Bush appointees have also adopted reforms that will make it more difficult to adopt new regulations in many areas in the future. But such actions hardly amount to the anti-environmental rampage Kennedy describes. It is one thing to criticize the Bush administration for not adopting proactive policy reforms–as many free-market groups have done. It is quite another to lie about the administration’s record for political gain.

Robert F. Kennedy Jr. is arguably the leading spokesman for the environmentalist campaign to drive President Bush from office. Environmental-activist groups long for a more aggressive proponent of federal regulation in the White House and are pulling out all the stops. Over-the-top accusations may mobilize part of the Democratic base and perhaps even move some swing voters. Such charges also help activist groups’ fundraising and direct-mail campaigns. It’s a shame that in their efforts to stop environmental pollution, Kennedy and other activists have become so willing to pollute the truth.

NRO Contributing Editor Jonathan H. Adler is an assistant professor of law at the Case Western Reserve University School of Law. His review of Kennedy’s Crimes Against Nature is forthcoming in NRODT.