"We Have to Force Their Hand": How the GOP Is Winning the War On Environmental Regulation

“Yes, my plan will continue to reduce the carbon pollution that is heating our planet – because climate change is not a hoax,” President Obama declared at the DNC, “More droughts and floods and wildfires are not a joke. They’re a threat to our children’s future. And in this election, you can do something about it.”

This was a bold statement for a president who spent the last two years seemingly avoiding environmental subjects, fearing he would alienate independent voters. Recent studies indicate that independent swing-state voters are receptive to an environmental message and, as these things generally go, the administration seems to be altering their rhetoric based on polling.

However, courting these voters may be a political risk Mitt Romney is not willing to take, considering that any mention of environmental vision is interpreted by the Republican base as “more regulation,” the antithesis of the Randian worldview they celebrate so passionately. But have conservatives always opposed environmental regulation, and has the backlash to environmental policies shifted political activism?

I spoke with Judith A. Layzer, an associate professor of environmental policy at MIT and author of the forthcoming book Open for Business: Conservatives’ Opposition to Environmental Regulation, out next month from MIT Press. She was kind enough to answer these, and other, questions about the anti-environmental regulation movement’s disturbing ascent.

Most people wouldn’t think of Nixon as an environmentalist, but he established the EPA and the Clean Air Act. He also signed the Coastal Zone Management Act, the Marine Mammal Protection Act, the Ocean Dumping Act, the Federal Insecticide, Fungicide, Rodenticide Act, and the Toxic Substances Control Act. Did conservatives’ views on the environment shift or did this legislation say more about the given era than the politics of the right at the time?

The spate of legislation passed in the early 1970s, as well as the creation of the EPA, were mainly products of the outpouring of public sentiment (as evidenced most obviously by Earth Day 1970, but also by dramatic shifts in the polls in the late 1960s and early 1970s). The perception by politicians that the environment was a priority for large numbers of voters compelled them to compete to show their environmental bona fides, or at least to avoid being viewed as anti-environment.

The Clean Air Act, for example, was a product of competition between Nixon and Ed Muskie of Maine, the likely Democratic nominee for president. Muskie had some environmental credentials, and Nixon seized the opportunity presented by the Clean Air Act reauthorization to challenge him head on by proposing a bill that was dramatically more stringent than what Muskie had offered. As you note, personally, Nixon was not an environmentalist; in fact, he was contemptuous of environmentalists. But his advisors perceived that the environment was an important issue electorally, and they urged him to take a pro-environmental position.

That said, in the book, I document a pretty rapid shift in Nixon’s rhetoric, from startlingly consistent with the environmental storyline to notably skeptical. As early as 1971, he was already beginning to raise concerns about the costs of environmental protection and the need to be “realistic” about tradeoffs and sacrifices required to protect the environment. His message transmitting the second annual report to Congress of the Council on Environmental Quality said "It is simplistic to seek ecological perfection at the cost of bankrupting the very tax-paying enterprises which must pay for the social advances the nation seeks.”

Nixon also retreated from a proenvironmental position in other ways. In 1972, Congress passed the Clean Water Act over his veto (he said he was worried about the price tag). The Nixon White House battled constantly with EPA administrator William Ruckelshaus over regulations to implement the Clean Air Act. And Nixon created the “Quality of Life” review, to be conducted by OMB with the aim of reducing the costs of regulation; as well as the National Industrial Pollution Control Council (NIPCC), comprising 63 industry leaders, to advise him on health, safety, and environmental regulations.) To go back to your original question, the real blossoming of conservative anti-regulatory activism came in response to the flurry of legislation in the 1970s, which took many by surprise. So yes, it’s true that there was no coherent opposition during the 1970s, when most of the nation’s major environmental laws were passed. In the book, I describe how industry mobilized in response to these new laws, and how they began pouring money into newly formed conservative think tanks, which in turn generated arguments that gave legitimacy to business’s concerns.

On many issues that seemingly boil down to scientific consensus, conservatives have been able to structure the dialogue so that it appears there are actually two sides. How have they been able to shape the debate so well?

This is an important theme of the book. Conservatives have been extremely clever at figuring out what, exactly, made environmentalists so successful in the 1960s and 70s. They realized pretty quickly that environmentalists had done a wonderful job of translating science into compelling political stories. Think about Silent Spring, which was a particularly persuasive translation because it was written by an actual scientist.

So antiregulatory conservatives came up with both a set of challenges to the environmental storyline and an alternative storyline more consistent with their worldview. In a nutshell, conservatives began to argue that environmentalists—with the support of ideological scientists—were intentionally exaggerating the seriousness of environmental problems. Abetted by a sympathetic media, they said, environmentalists whipped up public anxiety in order to (1) raise money for their own organizations or (2) garner support for their socialist vision. Either way, the result was a set of onerous laws and regulations that actually made the world more dangerous by stifling innovations that make us better off and by squelching the entrepreneurship that (eventually) enriches all of us. You’ll notice that this storyline downplays the risks of environmental calamity while playing up the risks of economic calamity. So where, exactly, does the science come into it? It’s worth remembering that scientific research into environmental conditions lends itself to political
manipulation. It is inherently uncertain because of the unpredictable nature of the world itself and because of our limited ability to experiment on and/or understand
the world. When we make claims about the importance of addressing environmental problems, we are making value judgments about our willingness to
bear the risks of serious damage. Of course, conservatives don’t want to say that directly; that’s an argument they might lose. But they can (and do) take pot shots at the science, picking on individual studies, trying to discredit individual scientists,finding scientists who disagree with the “consensus” view, etc. And since most people don’t understand how science is done or what the science actually says, it’s not that hard to cast doubt on the scientific foundation for environmental claims.

How have conservatives gotten their storyline across so effectively? In addition to figuring out ways to discredit science/scientists and environmentalists, they hit on a very effective media strategy. With plenty of funding from business leaders and conservative foundations, conservative think tanks began generating magazines and books; eventually they built web pages. In the early 1990s you had the advent of talk radio; later that decade you had the rise of Fox News. All of these sources parroted the same storyline. (In [my] book I quote extensively from Limbaugh’s book, The Way Things Ought to Be, which articulates a classic antiregulatory storyline.)

In other words, in terms of the media, their strategy was the same as it was with other issues: defame the “lamestream” media, accusing them of bias and distortion, and then replace them with outlets of your own design. Of course, they didn’t abandon the mainstream media altogether; when specific issues arose, conservatives recruited experts to promote their version of the story. Journalists, who are trained to be “objective” and to present “both sides,” fell into the trap. Still smarting from the conservative critique, they were especially anxious to show how neutral they really were by featuring competing viewpoints.

Fortunately, advocates have exposed these conservative tactics, and many journalists are more savvy now. But there’s no question in my mind that journalists and others in the media are still intimidated by conservatives’ critiques of the “mainstream media.” I think about how NPR is pointing out that Paul Ryan’s convention speech contained statements that were incorrect, according to numerous fact-checking organizations. In other words, “We’re not saying they were false; we’re saying that some fact checkers have found them to be so.” Environmentalists, and progressives in general, have consistently been less effective at using these media—with the notable exception of the Web, which they’ve used to great effect. People disagree about why that is. I tend to agree with the folks who say that progressive arguments don’t lend themselves well to the kinds of simplistic, ranting approach that conservatives seem to thrive on, and that the progressive audience isn’t receptive to such an approach anyway. I don’t know whether that’s correct, though; I’ve never really investigated it.

How do courts play into the right’s tactics? Republicans frequently run on this idea that America has been converted into a lawsuit-obsessed nation, but they have encouraged many environmental lawsuits, right?

That’s correct. One thing conservatives figured out pretty quickly was that environmentalists (and liberals generally) were making progress in part because they were litigating effectively. Conservatives responded with a multi-pronged strategy. First, they created their own public-interest law firms. At first, these firms struggled because they were perceived by many as shills of industry. But over time they became more successful (think of the Pacific Legal Foundation or the Mountain States Legal Foundation). They claimed they were fighting for the “little guy” (the rancher, small businessman, etc.) against big government.

Second, in order to ensure that when they did file lawsuits, they would get a favorable reception, they created organizations (like the Federalist Society) and focused on (1) “educating” lawyers and judges (through new law school curricula, like Law and Economics), and (2) getting allies appointed to the federal courts. The latter is an area where progressives notably have failed to respond; conservatives have long been more tenacious and effective at getting their allies into powerful positions. In the book I argue that conservative legal activism has been especially potent in the area of biodiversity conservation. They’ve been less successful in their challenges to the Clean Air Act and, more recently, greenhouse gas regulation. But even when they are unsuccessful, conservative lawsuits have an impact. They intimidate administrators, who are always trying to figure out how to stay out of court, and they consume resources. They also provide opportunities for conservative administrations to settle on terms that are favorable to conservative plaintiffs.

How has, for lack of a better term, the anti-environmental movement impacted the presentation of the environmental movement? In your research, have you
discovered a concern among environmentalists over the way their objectives will be received by a public fed so much propaganda?

I have mostly avoided the term “anti-environmental” in favor of the term “antiregulatory,” in an effort to treat conservatives’ views with some respect. It is true, however, that empirically, the net effect of most antiregulatory activism has been anti-environmental.

But to get to your main question, I think (and argue in the book) that the conservative movement has had profound effects on the environmental movement and on what kinds of arguments the public is willing to entertain. I found that many environmentalists are reluctant to acknowledge the power of conservatives’ antiregulatory activism. They prefer, instead, to focus on industry lobbying—ignoring the fact that conservatives have given industry arguments legitimacy. Mostly, environmentalists seem to be self-critical: it’s their fault; they have failed to figure out how to get the public to care about climate change, for example, or how to translate public concern into policy.

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Often without realizing it, many environmentalists reacted to the conservative onslaught by reframing their own arguments. They became more “pragmatic." For example, they began to talk about the costs and benefits of controlling air pollution rather than about a right to clean air. They looked for ways to quantify the benefits of conserving biodiversity rather than talking about the intrinsic value of non-human species. They moved away from the idea of economic transformation and began to argue that, through the magic of technology, environmental protection and economic growth could coexist. (There are plenty of exceptions, but they are mostly the grassroots groups, not the most influential mainstream groups.) One reason I wrote the book is that I wanted the new generation of environmentalists to see that there is an actual — and very determined — adversary out there, and that it might be worth contesting the fundamental terms of the debate, rather than conceding them.

Lost in the shuffle of the conventions was the fact that Interior Secretary Ken Salazar gave Shell the green light to drill a well in the Chukchi Sea. With Democrats frequently sporting the same deregulatory zeal as the GOP and, perhaps, further influenced by the backlash to environmentalists the right has stirred up, how do you perceive the environmental movement’s relationship to government over the coming years?

One thing I try to show in the book is the extent to which Democratic politicians have been cowed by conservative activism. This was particularly evident during the Clinton administration, when antiregulatory conservatives controlled Congress. But, not surprisingly, it shows up again under Obama. I wouldn’t equate Democrats’ and Republicans’ antiregulatory zeal; I don’t think they arise from the same place. It’s true that many Democrats have been genuinely convinced by economic arguments about alternative regulatory mechanisms. By that, I mean that over time they have become more open to using instruments like cap-and-trade or fees or other kinds of inducements, rather than rules and sanctions. But I think we’re also seeing some capitulation: if you’re under relentless attack, at some point it’s simply easier to concede ground. If you read about Bruce Babbitt’s experience as Secretary of Interior, you’ll see both of these dynamics at work.

One observation that I make is that natural resource/biodiversity conservation policy is more vulnerable than pollution-control policy to conservative attack
because fights over natural resources/biodiversity are widely perceived as regional. And for electoral reasons, most administrations are reluctant to pick fights with the West, where support for resource development remains strong and mobilized. It seems to me this is why Obama chose Salazar to head the Interior Departmen because he’s not a strong environmentalist; if he wanted to take a stand, he could have picked Raul Grijalva of Arizona. Given Salazar’s predilections, we should be surprised when he makes some predevelopment decisions. Lisa Jackson, by contrast, has been more willing to stand up for restrictive rules. But she’s at the EPA, which has a clear mission and—despite conservatives’ best efforts—is still widely regarded as an agency that protects the (national) public.

I think if we want to see real change, we can’t wait for politicians to act; we have to force their hand. Of course, given our campaign finance system, it’s an uphill battle for environmentalists to galvanize the public. And many Americans—even those who consider themselves environmentalists—seem unwilling to make even small changes in their lifestyles. I suspect few would currently support the kind of economic transformation that will actually be necessary if we’re going to restore the world’s badly damaged life-support systems. So that’s all pretty discouraging.

That said, I think there are some reasons for hope, but they don’t lie in national politics (at least not yet). Many environmentalists are putting their efforts behind cultivating sustainability at a local/regional level and developing and disseminating a progressive storyline that appeals to a broad coalition, not just environmentalists. My own view is that most people simply cannot imagine what an environmentally sustainable economy would look like, so creating local examples is really important. In terms of creating a more broadly based movement, during the period that the Occupy Movement was in the streets, it seemed to me that people were beginning to make the connection between the global, finance-driven economy and a whole set of other ills, from environmental degradation to massive economic inequality to social dysfunction. The generation of people currently in their twenties should be enraged at what they are inheriting.