I. Introduction
The Bush Administration’s investiture in office, when combined with conservative Republican control of both houses of Congress and, increasingly, the federal courts, signaled a move to the right on public lands and natural resource issues. Security concerns in the wake of 9/11 and a decline in the prominence of environmental issues increased the likelihood of change.
Even so, conservationists have been taken aback by the breadth and depth of the Administration’s attack on some of their cherished goals. They’ve been even more confounded by the Administration’s success in avoiding a popular backlash like the Reagan Administration encountered when it started down that same path. All in all, it has been a remarkable term.
This paper identifies the principal themes of Administration policies, focusing on federal natural resources, which comprise thirty percent of nation’s dry land and a much higher proportion of valuable things like fossil fuels, timber, water, and wilderness. It is drawn from a longer paper available from the Duke Environmental Law & Policy Forum [give link].
II. The Administration is a captive of industry
Ever since Theodore Roosevelt’s Administration, national policy toward management of the nation’s natural resources has been strongly imbued with a sense of stewardship, of looking beyond short-term political and market imperatives to protecting the interests of future generations. The Bush Administration displays none of this. It is, instead, a throwback to the nineteenth century’s Gilded Age. Sifting through its decisions in this area produces only a single common, explanatory thread, a sense that its political appointees ask one basic question—what does industry want? The Administration appears, in other words, to have no genuine policy agenda on natural resource issues other than this gut-level preference to serve mining companies, timber companies, ranching companies, and their allies.
The tilt toward industry reflects the backgrounds of the President and the Vice President, their sources of campaign funds and their appointments throughout the natural resource agencies. And, of course, reflexively regarding industry’s preferences as the correct public policy carries with it some decided political advantages, ensuring a hard core of readily-mobilized support for Administration initiatives and ample campaign funds for reelection.
But the range of the Administration’s solicitude for industry is rather breathtaking. It has sharply rolled back environmental safeguards at the behest of the hardrock (primarily gold) mining industry, even though the industry produces mainly jewelry rather than products of strategic significance; it pays the federal government nothing when it extracts minerals from federal lands (even though it pays states, private property owners and foreign governments when it mines on their lands), and it produces enormous amounts of waste and long-lasting pollution problems which historically have been left for the nation’s taxpayers to clean up. The Administration is proposing similar rollbacks in environmental standards at the behest of ranchers, whose livestock are found on about 300 million acres of federal land. It has taken a similarly hard line even in areas where it has paid some lip service to stewardship, such as national park management. It has weakened Clean Air Act regulations protecting visibility over national parks, and watered down controls on snowmobiles in the world’s first national park, Yellowstone. At the same time it has strengthened the hand of those who outside the federal government who seek, for development purposes, control of rights-of-way across federal lands. Its park policies have spurred outspoken, unprecedented criticism from former National Park Service career officials, who have formed an organization to protest. As these examples illustrate, pro-industry policies so permeate Administration actions that it is difficult to find even one Administration initiative that could be fairly deemed “pro-stewardship.”
III. The Administration has been particularly hostile to protecting wild lands
For several decades, a cornerstone of federal stewardship policy has been the idea, fundamental to the notion of leaving a legacy for future generations, that substantial tracts of federal land ought to be preserved in their natural condition. It is here, in its attitude toward the idea of preserving some remnants of land as “wilderness,” that the Bush Administration has perhaps been most hostile. It is essentially abandoning the Clinton Administration’s “roadless rule,” which protected nearly 60 million acres of remote national forest land from road-building and timber harvesting. It persuaded the U.S. Supreme Court that the federal courts had no authority to review federal land managers’ footdragging in the protection of wilderness candidate areas until Congress could act. And it suddenly, after secret negotiations, reversed the practice of four previous Administrations and forbade the largest federal land manager, the Interior Department’s Bureau of Land Management (“BLM”), from identifying and protecting wilderness “study areas” in its 270 million acre land base. The result is that many millions of acres of public lands are now vulnerable to road-building, mining, logging and other activities that could forever destroy their wilderness character.
IV. The Administration has been skillful in avoiding a backlash
For most of the last hundred years, Americans have generally refused to accept the proposition that industry and governmental interests are congruent. Yet the Bush (II) Administration seems to be getting away with that approach, at least so far. It plainly went to school on the experience of the first Reagan Administration, and particularly its flamboyant Secretary of the Interior James Watt, who was excoriated and ultimately deposed for his confrontational style on natural resource issues. The stylistic contrast with Watt could not be sharper. Through the friendly persona of Secretary of the Interior Gale Norton (a Watt protégé early in her career), the Administration has skillfully stage-managed its policies to avoid that kind of backlash.
The pattern was set in the 2000 campaign, where President Bush shrewdly put himself forward as an environmental moderate, supporting carbon dioxide emission regulations and full funding for protecting and improving the national park system. Once in office, he quickly retreated on both these campaign promises, just about the only ones he made on the environment, and began a systematic assault on land conservation. His Administration has slavishly followed the advice of the now-famous leaked memo prepared by Republican strategist Frank Luntz, which explained in considerable detail how to soothe the public with happy talk about the environment.
Interior Secretary Norton’s endlessly repeated mantra of the “4 C’s,” “consultation, cooperation, and communication, all in the name of conservation,” is a key part of the communications package. Meanwhile, the Administration makes one anti-conservation decision after another, often with little or no “consultation, cooperation or communication,” except with industry. Such decisions, are, moreover, often disclosed without fanfare in the slowest news cycle available, following standard political advice to release news the public might be uncomfortable with on Friday afternoon (preferably before a holiday weekend), when fewer people see it and those interests adversely affected cannot readily organize a response. The Administration’s devotion to that pattern would seem comical if it were not so effective. Here are just a few of the Administration’s late Friday announcements:
- opening 9 million acres of federal lands on Alaska’s North Slope (west of the Arctic Refuge) to oil and gas leasing;
- giving mining companies the legal right, not just the opportunity, to use as much federal land as they need for polluting waste dumps;
- adopting a very broad interpretation of federal court decisions to initiate a regulatory change to remove federal protection from 20 million acres of wetlands; and
- retreating on clean air requirements that aging power plants install pollution controls when they engage in major facility improvements.
Its manipulative bent knows few limits. It announced a major retreat from protecting roadless areas in a press release headlined: “USDA [the Department of Agriculture, which houses the Forest Service] Retains National Forest Roadless Area Conservation Rule.”
V. The Administration has deftly manipulated crises to serve industry
Undeniably, the Administration has been very good at playing politics with natural resources. It has, for example, shrewdly manipulated concerns over fires and over energy security, using them as wedges to open up many more public lands to commercial logging and energy development and to tilt federal natural resource decision-making processes in industry’s favor. Although its efforts to open the Arctic Refuge in Alaska to oil and gas development has attracted the most attention, the Administration has also sought to make oil and gas development the preferred use of hundreds of millions of acres of federal lands in the lower forty-eight, including many wild areas. This pro-energy industry tilt is not surprising, considering the energy industry’s dominance in the Vice President’s energy task force deliberations early in the Administration, the records of which the Administration has fought a long, still-continuing court battle to keep secret.
But that was just the beginning. The Administration has basically jettisoned the long-standing policy that national forests and public lands serve “multiple uses,” by instructing land managers to come down on the side of the industry unless they have a compelling reason not to do so. It has moved to relax the requirements of the National Environmental Policy Act (“NEPA”), an icon of environmentally sensitive decision-making that has been widely copied over the globe, and to downplay the role of biological diversity in the Forest Service and BLM planning processes. It has also moved on several fronts to reverse long-accepted notions that the public (and especially conservationists) may obtain meaningful review of agency decisions in administrative tribunals and the courts.
Yet on many of these matters, the Administration’s policies are not aimed at finding real solutions to real problems. On fire, for example, giving the timber industry access to stands of timber in remote areas is only loosely connected to the most pressing fire problem—protecting lives and dwellings in the so-called “urban-wildfire interface.” The Bush policy is practically silent on the key to making real progress in this area, leveraging federal firefighting dollars and insurance incentives to get stronger state and local building codes, vegetation management around structures, and related measures.
Likewise on energy, because the U.S. contains only three percent of the world’s oil reserves while consuming 25% of world production, no knowledgeable observer believes America’s dependence on foreign oil can be meaningfully dented by domestic production, even if every single acre of federal land onshore were opened to unrestricted energy development. Yet that is the primary thrust of Administration policy.
VI. Traditional conservative principles, like promoting free markets and devolving governmental responsibilities to state and local governments, have taken a back seat where they conflict with industry desires
Perhaps the strongest indication of the Administration’s capture by industry is the way it has readily sacrificed free-market principles where they conflict with industry desires. For example, in recent years, ideological conservatives have sought to resolve longstanding conflicts over the environmental impacts of livestock grazing on arid federal lands by buying and retiring the ranches involved in consensual, market-based transactions. Provided with such an opportunity to put in place the principles of so-called “free-market environmentalism,” the Administration has balked, because it is more concerned about placating the cattlemen’s trade associations and hard-bitten local opponents of federal land conservation. The unhappy result is that philanthropic money to invest in grazing retirements is harder to come by, much to the chagrin of free-market environmental groups, one of who recently gave the Administration a “C-” in its report card on this point.
Another example is the Administration’s unwillingness to defer to state and local governments when their interests diverge from those of industry. Thus, the Administration told a federal court in Nevada that federal mining law preempted efforts by a local county to regulate a proposed processing plant for federal minerals that would be located on private land. The overriding federal interest here is mysterious, considering that the only use of the material being mined is to make kitty litter.
The Administration has also favored industry over private property rights by facilitating recognition of rights-of-way across federal lands to advance industrial development, even where it puts a cloud on private property rights. Because many of these purported rights-of-way across federal lands also cross adjacent private lands, unsuspecting private property owners in the rural West are finding they may have no right to exclude people from their own lands, because of the presence of old rights-of-way claims that the Administration has put on a fast track for confirmation.
VII. Even where the Administration has left conservation measures in place, it has worked behind the scenes to undermine them.
Early on, the Administration made lots of noise about undoing or rolling back some of the twenty-two national monuments President Clinton created on federal land during his time in office. Its efforts to open these monuments up to oil and gas leasing came a cropper when, in 2001, Congress legislated to keep them closed. But now the Administration is moving quietly to weaken monument protections by watering down management land use and resource management plans, gutting monument management staffs, and other means. Similarly, the Clinton Administration’s Northwest Forest Plan, which reduced timber harvest levels in the Pacific Northwest to sustainable levels consistent with long-term preservation of their magnificent biodiversity, has not been formally repealed, but the Bush Administration is undermining it by opening up areas to logging under the banner of fire policy.
VIII. The Administration has sought remarkably little from Congress, while aggressively using executive authority
On this score, the Administration has taken pages from its predecessor’s book. But the Clinton Administration acted largely out of necessity, facing a hostile Congress for most of its tenure. President Bush has chosen to follow the same path even though for nearly all his term the Republicans have been in firm control of both Houses of Congress. While Republican congressional majorities have controlled the legislative agenda and protected the Administration from meaningful oversight, the Administration has apparently calculated that the Congress is not sufficiently in tune with its pro-industry policies to enlist its affirmative support, because a few moderate Republican Senators and 30-50 moderate Republicans in the House are not dependable allies of the Administration on many federal lands and natural resource issues.
The result is that, with very few exceptions, the Administration has not been interested in expending political capital to move its agenda through the Congress. It has, for example, paid lip service to idea of legislative reform of the antiquated Mining Law of 1872, but it has never sent a reform bill to Congress, concentrating instead on greasing industry’s path through executive interpretation. Indeed, with the exception of energy (where legislation is required if the Arctic National Wildlife Refuge is to be opened to drilling) and fire policy (where some process changes require legislation), almost no significant Administration initiative in this area has required congressional action.
The explanation seems obvious enough: The Administration is more pro-industry than many congressional Republicans, and it does not want the kind of public debate on its policy initiatives in this area that is practically inevitable in the legislative process. Its reluctance to go to Congress, then, has been of a piece with its penchant for announcing natural resource decisions late on Fridays.
IX. The Administration has shrewdly used court settlements and other means to make its decisions harder to reverse in the future
For example, when the Administration decided to strip BLM of authority to create new wilderness study areas, it did not do it by formal rule-making, policy pronouncement, or even press release. Flouting the Secretary Norton’s “four C’s” mantra, it chose instead to wrap its decision in a secretly negotiated settlement of a seven-year-old, previously moribund lawsuit brought by the State of Utah, and to get a friendly local federal judge (a former staff member to Senator Orrin Hatch who had been appointed to the bench by the President’s father) to approve it the next day before anyone could object.
Another telling example is found in the Administration’s approach to the Endangered Species Act (ESA). The Administration has been reluctant to ask Congress to relax the Act’s protections, perhaps because of concern about undermining its base in the religious right, where species preservation resonates with overtones of Noah and the flood. But that has not stopped the Administration from finding less direct ways to do it. In one recent case, the Administration told the federal courts it could not reduce deliveries of taxpayer-subsidized water from federal water projects where necessary to protect endangered species. This radical position contradicts that taken by previous Administrations, including those of Ronald Reagan and the first President Bush, and also flies in the face of numerous prior court decisions.
Here and elsewhere, the Administration’s narrow view of regulatory authority and broad view of property and contract rights gives it a way to bind future Administrations and Congresses to its conservative views. In the area of federal natural resources, the policy effectively achieves a subtle “privatization”—a disguised throwback to the nineteenth century’s Gilded Age.
X. The Administration has not hesitated to manipulate science or facts to serve industry
The following are a few of numerous examples of the Bush Administration’s manipulation of science or facts to serve its goals (the italicized phrases being the gist if not exact quotations of the Administration’s assertions):
a. We believe in sound science in government decision-making. Recently a nonpartisan group of more than sixty prominent scientists, including a dozen Nobel laureates, stated that the Administration had ignored and manipulated scientific knowledge in order to advance its political agenda.
b. The government has irrationally locked up large onshore energy supplies. Congressionally-mandated studies have shown that the vast majority of federal lands with oil and gas potential have long been open to leasing and development without special restrictions.
c. Obstructionist environmental appeals have jeopardized public safety and healthy forests by slowing down desperately needed forest thinning projects. The General Accounting Office and others have done studies which show that only a small fraction of forest thinning proposals have been appealed, and only one percent of such projects have been enjoined. The facts have not muffled the Administration’s drumbeat that many communities are imperiled by foolish environmental injunctions.
d. We can still protect wilderness values, we just can’t protect wilderness. In the wilderness settlement agreement reached with Utah Governor Leavitt (later named by the President to be Administrator of the Environmental Protection Agency), the Administration told the court it had no legal authority to create new wilderness study areas. Simultaneously, Secretary Norton released a letter to the press in which she said the settlement did not prevent the Administration from protecting wilderness values. But actions (and a court settlement) spoke much louder than the Secretary’s press release. The Administration has moved aggressively to lease many such areas to oil and gas companies, so aggressively, in fact, that Governor Leavitt registered a protest as the ink was drying on the agreement.
e. Our generous policy promoting roads across many federal lands does not threaten national parks, wildlife refuges, wilderness areas, or private property. In another court settlement, the Administration created a special process to facilitate recognition of claims to rights-of-way across federal lands, and said it was not anti-conservation because it did not apply to national parks, wildlife refuges, wilderness, and private lands. But most of the right-of-way claims to be studied do not conveniently end at the borders of these protected lands, but instead to proceed into them. If, as the Administration seems bent on doing, these claims are resolved on generous terms, it is pointing a loaded gun at these protected areas and giving the claimants the power to pull the trigger.
XI. Conclusion
The Bush Administration has compiled a remarkably strident pro-industry record. It has acted mostly unilaterally, Congress accommodating by staying out of its way. It has also so far escaped serious resistance in the courts. Meanwhile, the Administration’s shrewd messaging and the lack of congressional resistance have avoided triggering a serious public backlash. But now we are in a national election campaign, which provides an opportunity to scrutinize the Administration’s record. The election will likely answer the question whether this twenty-first century Gilded Age continues, or whether we move back toward the stewardship ethic that guided twentieth century federal policy in this area. The outcome could have a dramatic effect on the future of federal lands and natural resources.
John D. Leshey, Harry D. Sunderland Distinguished Professor of Law, University of California Hastings College of the Law. The author was Solicitor, U.S. Department of the Interior, 1993-2001, where he participated in a number of the actions that have been reversed or modified by the Bush Administration as recounted in this paper; hence, the jaundice in the title. This paper grew out of public debates between the author and Assistant Secretary of the Interior Lynn Scarlett held in connection with environmental symposia at Harvard and Duke Law Schools in November 2003.