The Bush Administration’s environmental legacy was the subject of a panel sponsored by the Section on Natural Resources Law at the Association of American Law Schools (AALS) annual meeting in San Francisco earlier today. Titled “The Legacy of the Bush Administration’s First Term: Natural Resources Law and Policy in the Cross-Hairs,” the panel assessed the changes in natural resource and federal land policies during the first four years of President Bush’s terms. As noted by moderator David Harding Getches, a professor at the University of Colorado School of Law, the Bush Administration’s policies have come under harsh criticism for reversing Clinton Administration initiatives, “rolling back” environmental protections, misusing environmental science, and adopting a “Trojan horse” approach to litigation, strategically settling lawsuits brought by resource groups to shift land-use policy in either a pro-industry or free market direction. The panel of environmental law professors was interesting and provocative. My summary of the proceedings follows.

The opening shots were fired by Professor John David Leshy of the University of California at Hastings. Leshy served as solicitor for the Interior Department under President Clinton. According to Leshy, environmentalists are beginning to wish Bush Interior Secretary was “James Watt in a skirt,” as they had charged at her confirmation, as Norton has been more aggressive and more effective, in many cases reversing long-standing federal policy. Leshy noted that the Administration has sought few legislative battles and not sought to reopen protected areas outside of the Arctic National Wildlife Refuge (ANWR), instead focusing on administrative initiatives and announcing policy changes on Friday afternoons. The Administration has also used “sloganeering” and spin to mask the nature of some policy changes. It’s been a “remarkable effort,” but “quite skillfully done.” This effort has been successful, in part, because the environmental movement has lost steam, and conservative think tanks are more aggressive. There was only one environmental question in the President debates, and Senator Kerry “blew that one.”

If there is a historical parallel to the Bush Administration, Leshy said it is the Gilded Age. The Administration has pursued a pro-industry agenda with few principled elements of free market environmentalism and federalism. It is not only hostile to the Clinton Administration’s environmental policies, but embodying a “hard right corporate” agenda. Despite conservative rhetoric, the Administration has placed serving corporate interests ahead of advancing conservative and free market principles. For instance, the Administration filed an amicus brief arguing that federal mining law preempts state and local land-use laws on private land. Similarly, the Interior Department has resisted efforts to allow environmental groups to purchase ranches and retire associated grazing permits.

As for Bush’s second term, “they have the wind at their backs” and strong legislative majorities. While many Presidents lose steam in the second term, Leshy noted that the Interior Department was far more aggressive – and successful – during Clinton’s second term. If – and this is a big if – the White House wants to devote political capital to cementing the policy changes of the past four years, they could accomplish quite a bit, but Leshy was skeptical this will be the case. Nonetheless, there will be a vote on whether to open ANWR, renewed debate on the energy bill, and more administrative changes are undoubtedly in the works. Tightening fiscal conditions will also affect new environmental initiatives. On the Congressional front, there will be efforts to reform the Endangered Species Act (ESA). The Administration’s view on ESA reform is unclear and, Leshy suggested, is not eager to engage the ESA due to concerns evangelical Christians might abandon ship (ark?) in such a fight. Leshy also suggested that some western states are beginning to shift to the left, and this could restrain aggressive new initiatives.

Professor Holly Doremus of the University of California at Davis next addressed the Administration’s alleged misuse of science. While some scientists have accused the Administration of “Lysenkoism,” Doremus suggested the Administration has “not gone that far, yet.” The Administration’s approach has been more subtle and, Doremus provocatively suggested, was essentially encouraged by the conservation movement’s historical approach to science questions. The conservation movement’s effort to suggest that environmental policy questions are, or should be, determined by science and science alone – effectively subsuming their policy preferences into scientific determinations – invited the Administration’s emphasis on uncertainty and the incompleteness of much scientific research. By subsuming the underlying values questions to scientific debate, conservation scientists may have increased their influence in policy debates, but they also created this opportunity. After all, if science – and science alone – is to determine policy, there is a reasonable argument that the government need not act where the science is uncertain or incomplete. Indeed, because science is nearly always incomplete – and because conservation policies inherently entail political judgments – the Administration can escape confronting environmental values by stressing uncertainty in policy decisions instead of contesting the underlying aims of the statutes and existing policies.

Due to statutory ambiguity, the Administration is able to use scientific uncertainty as the basis for inaction. One example Doremus cited is listings under the Endangered Species Act. Where the Clinton Administration averaged 66 species listed per year, only 28 species have been listed during the Administration’s first term – four of which are subspecies of the Channel Islands fox, three of which live exclusively on federal lands. [I am not sure that listing species under the ESA is the best way to save them, but it’s not as if the Administration has aggressively pursued alternative conservation approaches.] The Administration has also sought to adopt categorical exclusions to various analytical requirements, such as the environmental impact statement process mandated under the National Environmental Policy Act (NEPA), and sought to remove policy decisions from conservation agencies purview. For instance, portions of the Healthy Forests Initiative allow the U.S. Forest Service to take certain actions without Fish & Wildlife Service review.

Professor Doremus next suggested that more claims that scientific data objectively require conservation action will be insufficient to respond to the Bush Administration’s initiatives. If regulatory decision-making is to be more scientific, there needs to be a greater emphasis on process. For instance, Doremus urged a greater commitment to openness and transparency and greater efforts to force inherently political decisions into the open. The information base in many natural resource areas is incredibly thin, so there will almost always be room to argue from uncertainty if science is the basis for policy decisions. In response to a question, Professor Doremus suggested that the precautionary principle is no panacea. Whereas conservationists stress the need to take precautionary measures to protect environmental values, the administration can argue it is taking a “precautionary” approach to the adoption of new regulations that may hamper economic growth. Peer review has a role to play, Doremus suggested, but not the role to which the Administration has assigned it. While peer review can increase transparency, it can also be used to increase the costs regulatory actions and discourage regulatory action.

Stanford law professor Barton “Buzz” Thompson, who directs the Stanford Institute for the Environment, addressed conservative assessments of the Bush Administration’s policies. As he noted, groups like the Property & Environment Research Center (PERC) and the Cato Institute have been sharply critical of the Administration’s alleged failure to advance market principles. From the outside, it appears that Reason Public Policy Institute alum Lynn Scarlett has had relatively little influence.

Conservative thinking is not unified on environmental issues, Thompson noted, and can be divided into five camps: 1) Libertarians, who are skeptical of government action and highly supportive of property rights – and wish to protect property against government regulation and private pollution alike; 2) Pareto-Optimists who cherish efficiency, and therefore call for market-mechanisms and flexibility; 3) Jeffersonian conservatives who want to devolve environmental decision-making to the local level as much as possible; 4) Hamiltonian conservatives who are happy to wield national power to promote the economic engine of society, and who believe such policies are effective at driving economic growth; and 5) Burkean conservatives who stress continuity with the past and are reluctant to endorse radical policy change. Of these, Barton suggested, the first two are the most “pro-environmental,” whereas the last two are the most skeptical of environmental goals.

As caricatured by Thompson – his description – there are tensions among the five camps and potential splits on Administration policy. Libertarians and Pareto-optimists would endorse efforts to eliminate government subsidies that are both economically inefficient and environmentally destructive, and there has been no interest within the Bush Administration to move in this direction. Yet this approach could, perhaps, be defended by Hamiltonians who support government subsidies, and Burkeans who might care about the interests of those who have relied upon subsidies for years. Thompson suggested that various conservatives should support government policies to disclose – or require disclosure – of information on environmental matters (though did not identify which group might support such mandates on private firms). The Administration has resisted such policies, however, perhaps due to Hamiltonian impulses.

The Bush Administration’s stress on economic incentives in environmental policy should please Pareto-optimists, at least in part. The Administration has created various positive incentive programs to encourage conservation practices on private land. Yet these programs are so small that they are little more than “window dressing,” Thompson said. Moreover, the initiatives show “no sophistication” due to their failure to address potential opportunistic behavior induced by the new incentives. The Administration’s approach to the Conservation Reserve Program has undermined its conservation purposes while ensuring that incentive payments continue to participating farmers.

Thompson thinks the Administration deserves the highest grade in its effort to encourage greater use of market instruments. Examples include the Administration’s active endorsement of ITQs for fishing, effluent banking under the Clean Water Act and conservation banking under the ESA. The greatest inconsistency in Administration policy concerns questions of federalism. On the Jeffersonian front the Administration has also promoted “candidate conservation agreements” with states to encourage greater state and local involvement in species conservation, but the Administration has also supported preemption of aggressive state environmental laws.

In Q & A, Thompson suggested that at least some conservative environmental reforms are most likely to occur under a Democratic administration with a conservative Republican Congress, as such a Democratic administration will have to embrace conservative tools to advance environmental goals. Both Thompson and Leshy agreed that most environmental policy reforms occur at the administrative level and little of significance happens in Congress. The Clinton Administration resorted to the aggressive use of administrative initiatives because it faced a hostile Congress. The Bush Administration has done the same thing, but perhaps for a different reason Thompson suggested. Whereas the Clinton Administration didn’t go to Congress because it was afraid of what Congress might do, the Bush Administration doesn’t go to Congress because it doesn’t want publicity for what it is doing. Thompson also suggested that the lack of new federal initiatives has created a vacuum that it being filled by aggressive measures at the state and local level.

Best quote of the panel: John Leshy on NEPA: I’ve been in government along time and I grew to hate NEPA. That’s why we did national monuments because NEPA didn’t apply.”

General Commentary: The panelists are certainly no fans of the Bush Administration’s policies, but much of what they had to say is accurate. The Bush Administration has generally failed to advance conservative principles, perhaps because (in Thompson’s formulation) the Hamiltonians are ascendant. On the other hand, the Administration’s failure to continue to Clinton Administration’s agenda is hardly a fault.

I would also say that while I find Thompson’s formulation of types of conservatism useful for his analysis, the differences are not as stark as he might suggest. Most libertarians believe that unregulated markets are both more efficient and the greatest means of ensuring economic growth. Moreover, most thoughtful libertarians have profound respect for tradition, community and the other non-governmental elements of civil society celebrated by Burkeans, and encourage Jeffersonian devolution where more property-oriented reforms are not available. The real split, in my mind, is between the libertarian conservatives and, for lack of a better word, the Hamiltonians. Whereas the former believe the environment is best protected by property rights, and non-governmental institutions, the latter believes that centralized governmental power should be used for conservative ends.