A New Green Offense
Another environmental dilemma.

By Jonathan H. Adler, assistant professor, Case Western Reserve University School of Law
August 17, 2001 8:20 a.m.

he Bush administration has another environmental dilemma. This week the Environmental Protection Agency (EPA) planned to release a proposal to scale-back regulatory provisions that discourage the construction of new industrial facilities and the modernization of existing plants. While the regulatory provisions, known as "New Source Review" (NSR) are supposed to reduce air pollution, they have the unintended consequence of prolonging the lifespan of older, dirtier facilities. By increasing the costs of new and modernized facilities — which tend to be cleaner and more efficient — NSR impedes environmental progress. NSR is also an obstacle to the construction and upgrade of power facilities, making NSR reform a key element in the administration's new energy strategy.

The NSR reform proposal was due by August 17. Not anymore. In the face of exaggerated environmentalist claims that NSR reform will cripple federal air-pollution control, the administration decided to delay its announcement for a month when it can be paired with related pollution control initiatives. Even though NSR reform could produce substantial environmental benefits, the administration would rather bury it from view lest the proposal trigger another round of green assaults in the press. Environmental activists have attacked the Bush administration's every environmental move. Even regulatory moves defended by former Clinton officials were savaged by environmentalist advocates and the major media. Like the Republican Congress, the administration appears to be losing its nerve on environmental issues.

Washington, D.C. is a hostile environment for environmental reform. Nonetheless, the Bush administration bears some of the blame for its environmental problems. Upon taking office, the Bush team found that Clinton-Gore regulators had left behind a morass of regulatory booby traps — so-called "midnight regulations." The new administration sought to undo the Clinton-Gore mischief with little appreciation for the potential sensitivity of environmental concerns, and it paid the price.

A perfect example was the administration's decision to withdraw the Clinton-Gore proposal to tighten the federal standard for arsenic in drinking water from 50 parts per billion (ppb) to 10 ppb. When this decision was made, there was no serious effort to explain the move, let alone defend it. Asserting the need for "sound science" could not deflect the absurd claims that the Bush move threatened children's health. Within weeks, the administration was forced to retreat. Shortly after the initial announcement, the Bush EPA announced it would issue its own arsenic rule, and that it could be even more stringent than the initially proposed rule.

Defending the arsenic decision should have been easy. Arsenic is a naturally occurring substance in drinking water. In most parts of the country, arsenic levels are well below those linked to adverse health effects. Where arsenic is a problem, individual states are fully capable of setting their own standards, as many have. The primary beneficiaries of a looser standard were not major corporations, but drinking-water systems in small communities that could have been bankrupted by the tighter rule. Should the 10 ppb limit go through — and it still might — many communities would see dramatic increases in their monthly water bills, forcing some to abandon treated water in favor of local wells. This could put more lives at risk than would hypothetically be saved by the Clinton-Gore rule. Indeed, an analysis of the Clinton-Gore rule by economists at the AEI-Brookings Joint Center on Regulation found that dropping the standard to 10 ppb could, on net, increase mortality. In other words, by withdrawing the Clinton-Gore proposal on arsenic, the Bush EPA was saving lives, but you'd never know it listening to the Bush officials defend the move.

Many of the Bush administration efforts to curb the Clinton-Gore regulatory excesses could be defended on environmental and public-health grounds. But they aren't. Appearing on NBC's Meet the Press after the arsenic controversy exploded, Karl Rove tamely insisted that the administration was not anti-environmental because the administration would tighten the arsenic rule, sign international environmental treaties, and spend billions on other environmental concerns. Listening to Rove one could fairly assume that the measure of a politician's environmental commitment is his willingness to issue regulations and spend taxpayer dollars. Accepting this equation of environmental protection with government largesse is a recipe for disaster. It is bad policy and bad politics.

It is probably too late for the administration to rehabilitate the arsenic decision. But it's not too late to learn from these mistakes and adopt a proactive approach to regulatory issues going forward. In particular, the administration must learn that pro-environment does not equal pro-regulation. For instance, there's no doubt that revising New Source Review could facilitate new energy production and industrial growth. These are important goals, but they hardly appeal to those who fear the administration is anti-environmental. The Bushies should explain that continuing environmental progress is hampered by burdensome environmental regulations that discourage the development and deployment of cleaner technologies and more efficient facilities. NSR reform is not an anti-environmental position.

There is no need to apologize for reforming our nation's environmental laws. Existing federal policies subsidize pollution and waste, discourage toxic cleanup and recycling, foster habitat destruction, and impede technological progress. Thus, there is nothing inherently anti-environmental about environmental reform. Communicating this message is difficult as most environmental journalists take their cue from pro-regulatory activist groups. But it can be done. If the Bush administration takes environmental issues seriously enough to articulate a pro-environment, anti-regulatory message, it could make substantial environmental progress and help reframe the current environmental-policy debate. Playing perpetual defense on environmental matters is a recipe for failure. It's time for the Bush team to go on environmental offense.