The Bush Administration has used such legal strategies so often that observers have coined a term for it: "sue and settle." Strictly speaking, the term alludes to cases in which an aggreviated party sues the federal government and the Administration, despite having a strong case, agrees to a sweetheart settlement that gives that party what it wants. But broadly speaking, the term also encompasses other forms of courtroom capitulation on the part of the government, such as simply mounting little or no defense, as in the case of the Roadless Rule, or not appealing a strong case to a higher court, again, as in the Roadless Rule.
Often the sue-and-settle approach has the disorienting effect of pitting the Administration against its own agencies and experts. Take the case of the California red-legged frog, once the Golden State's most abundant frog and likely the title character in Mark Twain's short story, "The Celebrated Jumping Frog of Calaveras County." Largely a victim of urban sprawl and the concomitant draining of wetlands, the frog landed on the threatened list under the Endangered Species Act in 1996, by which time it had been eliminated from more than 70 percent of its historic range. In order to protect the frog, in March 2001 the U.S. Fish and Wildlife Service, which oversees endangered species matters, declared 4.1 million acres in California to be "critical habitat." This means that any company or person seeking to build on or otherwise develop a portion of that critical habitat must first convince Fish and Wildlife that the development won't drive the frog closer to extinction or impede its recovery. Though critical habitat designation doesn't prevent development, many home builders detest it because it may cut into their profits by keeping them away from certain coveted wetlands, making them build fewer homes on a given piece of land, or forcing them to buy land elsewhere to mitigate the damage they do where they're building.
In June of that same year business interests led by the Home Builders Association of Northern California sued the government, largely on the basis that Fish and Wildlife had underestimated the economic impact of protecting the frog. (It's worth noting this argument, since opponents repeatedly and mistakenly criticize the Endangered Species Act for not taking economics into account. As the Home Builders' suit demonstrates, the act does indeed consider the economic costs of protecting species. It does so when critical habitat is designated--after which actual economic harm may occur--and not at the time a species is put on the list, which in itself carries no economic burden.) In 2002, after closed-door meetings between the Administration and the business interests that had bought the lawsuit (conservationist lawyers asked to be included but were refused), the Administration settled. It agreed to slash the amount of protected habitat from 4.1 million acres to 200,000 acres and those 200,000 acres were public lands that couldn't be developed anyway. Quoted in a story in the San Jose Mercury News before the Administration's deal with the plaintiffs, Fish and Wildlife spokesperson Pat Foulk had said, "We stand by our science. We don't think it's going to create the level of hardship the plaintiffs have indicated." But instead of defending its own agency's position, the White House thrust aside the studies and expertise of the Fish and Wildlife Service and sided with industry.
As Administration officials are quick to point out, other presidents have used settlements, both for and against environmental interests. But the current Bush Administration has carried the practice to new heights--or depths, depending on one's point of view. This White House uses sue-and-settle techniques more frequently than its predecessors, often to decide cases of immense magnitude, which wasn't common under past administrations. Vital environmental policy is being decided behind closed doors in settlements between the Administration and industry, policy that many critics think should be debated fairly and decided openly. Citing 11 cases that came up during the first 16 months of the Bush White House, a report from the office of Senator Charles Schumer (D-NY) says, "If these cases of representative of DOJ's [Department of Justice's] current approach on environmental laws, it sends a dangerous message to environmental opponents. It tells them that if they do not like an environmental law or regulation, rather than challenge it in a public legislative or regulatory forum, they should sue. The failure to appeal just the cases in this report alone leaves far-reaching decisions on the books that reinterpret core legal principles..."
These cases typify the Administration's record. Tellingly, among the many such cases I examined, the Administration always sued and settled in a way that favored industry. I didn't find a single example in which a matter dear to corporate interests was undercut by a weak defense (when a strong defense was available) or a pro-environment settlement that the Administration had negotiated in closed-door mettings attended only by environmentalists.
Perhaps more than any other issue, the designation of wilderness is being profoundly altered by the Administration's sue-and-settle machinations. This comes as no suprise when you consider the pro-development resumes of Bush himself, Vice President Cheney, and many of the President's appointees. Timber companies, real-estate developers, and other business interests may chafe under regulations that restrict their activities, but they particularly abhor wilderness. These industries need land, and a wilderness designation goes beyond restricting them to shut them out almost entirely. Energy companies, ever popular with this Administration, have an especially big stake in preventing the establishment of additional wilderness. Oil and gas outfits cover BLM [Bureal of Land Management] lands, and of the BLM's 264 million acres only about 6.5 million acres--about 2.5 percent--currently are protected as wilderness. But millions of additional acres have been identified as potential wilderness, and some of the White House's most problematic sue-and-settle actions have been aimed at not realizing that potential.
The fact that settlements can be larded with policy provisions that stray from the original lawsuit is just on of the attractions of the sue-and-settle approach. Settlements also enable the Administration and the plaintiffs to keep everyone else in the dark while decisions are being hammered out. Often citizens and environmental groups don't hear about a settlement until it is done. Even when the public interest attorneys get wind of an impending settlement they're usually shout out of the process; not only does the Administration refuse to let them participate in the talks but in many cases the Administration won't provide documents or even reveal when it and the plaintiffs are meeting. When conservation groups seek documents under the Freedom of Information Act (FOIA), frequently the Administration stonewalls, ignoring the 20-day deadline because they know they'll get a slap on the wrist. Late in August 2003, the Wilderness Society and Earthjustice brought suit against the Department of the Interior, accusing it of illegally withholding documents regarding the settlement deal it had made behind closed doors. At the time of this writing, the Wilderness Society had been waiting for nearly eight months and had received an inadequate response from Interior. In other wilderness cases conservation groups likewise have been left empty-handed and have had to resort to lawsuits to try to get documents from the Interior Department concerning agreements made behind closed doors.
There's an even more basic reason that the Administration finds settlements attractive. "If these cases got litigated," said Angell, "industry would have little chance of winning on the merits of the claim. If they settle, and basically the government gives them what they want, it's harder to overturn." It's difficult for citizens and public interest groups to object to a settlement, as they have few levers. Courts have a strong inclination to approve settlements and move on to the rest of their crowded dockets. From the judges' point of view a settlement means that the two opposition parties have agreed to a solution, so why rock the boat? Sometimes courts will scrutinize a settlement to determine how well it serves the public interest and occasionally they'll disapprove a settlement on those grounds, but the default position is approval.
Many advocates of unfettered development insist that we already have enough wilderness in America. After all, Congress already has designated 662 wilderness areas encompassing 106 million acres. But a closer lookat the numbers reveals a different story. [b]A bit more than half of those protected wild acres sprawl across Alaska; only about 2 percent of the lower 48 has been designated wilderness. According to the Wilderness Society, 75 percent of the lower 48's 2 percent is scenic but often harsh and relatively unproductive desert and mountain country. And that 75 percent is not very diverse, representing only a small portion of the nation's eco-regions. In terms of both quantiy and quality, then, America doesn't have much land left, especially biologically diverse land, that hasn't felt the touch of industrial society. The Wilderness Society calculates that only 200 million or fewer acres remain that may be suitable for wilderness, and that number is constantly dwindling. And the amount of untamed land will shrink rapidly if the Bush Administration succeeds in its anti-wilderness sue-and-settle campaign.
Does it matter if we never designate another acre of wilderness in the United States? Critics portray wilderness as nothing more than the playground of an elite minority of white-wine-sipping, Eddie Bauer-clad environmentalists. These critics would say that 106 million acres--even given the caveats noted above--are more than enough. Advocates would retort we don't have enough wilderness, that we need wilderness more than additional oil wells or outlet shopping malls. These advocates would state that the image of wilderness as a playground for the eilite is a propoganda sterotype. They also would say that "playground" is a misleading word because the wilderness experience often goes beyond ordinary recreation and engages visitors on a more profound level. Hearing the howl of a wolf pierce the night while you're sleeping under the stars stirs primeval feelings, deeply meaningful feelings that you don't get from everyday outdoor pastimes like riding bikes or pitching horseshoes in the park. Advocates also would say that wild places have intrinsic worth apart from any service they provide for humankind.
Hardheaded critics [Rush Limbaugh --4Seasons] who scoff at the notion of intrinsic worth or deeply meaningful primeval feelings may find the practical ecological value of wetlands and water more compelling. Entire books recently have been written expounding on this rapidly expanding body of knowledge, so I can't begin to do the topic justic in this space. But here's a short list of services provided by wilderness and other undeveloped and less developed areas: forests help stabilize the climate by sequestering carbon dioxide; wildernesses serve as reservoirs for genetic diversity of plants and animals; healthy estuaries serve as breeding and rearing waters for many commercial fish species; undeveloped land maintain soil productivity; intact forests help control floods; and unspoiled wetlands help purify drinking water.
Speaking of the pending nominees who have made dubious remarks, William Haynes II deserves special mention. Picked by Bush to sit on the Fourth Circuit Court of Appeals, Haynes currently serves as the Defense Department's top lawyer. In a 2002 case in which conservationists sued the Defense Department over the bombing of an island important to nesting migratory birds, Haynes and his defense team argued that nature lovers actually benefit when the bombs kill birds because it makes the surviving birds less common and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." Does it suprise you that Haynes lost this case?
Reacting to the [Henry] Waxman report in an interview with The New York Times, White House Press Secretary Scott McClellan said, "This Administration looks at the facts, and reviews the best available science based on what's right for the American people. The only one who is playing politics about science is Congressman Waxman. His report is riddled with distortion, inaccuracies, and omissions." Waxman indeed may enjoy the political points scored by his report, but its many examples and details can't be dismissed so easily. I repeatedly contacted McClellan's office, as well as two other White House offices, to ask for more information about the "distortion, inaccuracies, and omissions" and to find out what sources McClellan used. After talking to a number of baffled staffers, I finally was told that McClellan go his information from the EPA. So I called over there and asked the same questions. "Huh?" was the gist of its response. It seems that McClellan offered a knee-jerk denial with no data to back it up. Not very scientific of him. In developing its campaign, the Union of Concerned Scientists evaluated many of the Waxman Report's claims and found every one that they examined to be solid.
...Even if all polluters adhered to religiously to those non-binding goals, Administration projections show that while the "intensity" would decline, the actual tonnage of greenhouse gas pollution produced in the U.S. would rise by 14 percent over the next ten years, just as it did in the previous ten years. Undeterred by this information, the White House produced a fact sheet claiming that even though Bush had shunned the Kyoto agreement, the President's "emission intensity" plan would achieve much the same result, reducing America's greenhouse gas pollution to 7 percent below 1990 levels by2012--the Kyoto target accepted by other industrialized nations that signed the treaty. But in reality the Administration's plan would lead to emissions 30 percent higher than 1990 amounts. In December of 2002, after launching all this "emissions intensity" business, the White House pulled out another favorite tool for those who want to bury inconvenient science: delay by study. Despite many years and hundreds of peer-reviewed studies showing ample agreement abou the essentials of global warning, the Administration insisted that it must study the matter for another ten years before taking significant action.
As if trying to hide an elephant in the living room by throwing a slipcover over it, the Administration has repeatedly has attempted to conceal the reality of global warming in environmental reports. This game started when an EPA-led task force published a report, in May 2002, that laid out a scientifically accurate view of globalwarming. The Administration stuck the report into the nether regions of EPA's Web site, but it soon slipped out. Industry and its allies howled. Bush sprinted away from the report, dismissing it as some blather "put out by the bureaucracy." Christie Whitman, then EPA Administrator, claime3d that she hadn't known about the report until she read about it in a newspaper. All this drowning of the report looked disingenuous when the Natural Resources Defense Council (NRDC), an environmental group, released documents that told a different story--Bush officials had been closely following the report for months prior to slipping it deep into EPA's Web site. A few days after NRDC's revelations, Bush reversed field again and said. through spokesman Ari Fleischer, that now he stood behind the report. But Fleischer added that, somehow, the report didn't contradict the Administration's basic position downplaying global warming.
Perhaps because they'd been burned by the May 2002 EPA report, the Administration didn't take half measures with the next report on global warming. In September 2002, EPA released its annual report on air pollution, which for the previous six years had included a section on global warming. This time, rather than tuck this incendiary information into an obscure corner of the annual report as in the handling of the May document, Bush's EPA appointees completely cut it out.
The Administration's suppression of information extends beyond America's borders, too. Due to a variety of environmental problems, Yellowstone National Park had been listed by the United Nations' World Heritage Committee as an imperiled site that needed international attention. Paul Hoffman, Deputy Interior Secretary for Fish and Wildlife and Parks, asked the committee to take Yellowstone off the list, citing a Park Service report that showed, according to Hoffman, that "Yellowstone is no longer in danger." In a familiar pattern, the draft of the report, written by park staff, mentioned numerous problems, but Interior deleted discussions of those concerns in the version it sent to the U.N. hesitated to remove Yellowstone from the list. Finally, it did take the park off the at-risk list, but only after requiring that the U.S. keep the U.N. abreast of those ongoing environmental threats in Yellowstone and requesting that independent scientists and organizations participate in those periodic assessments. Apparently the U.N. didn't trust the Administration to provide unvarnished data.
It begs the question why Yellowstone or any other *keystone* National Park would be taken off the watch list. By taking them off the list, what they are in effect saying is the parks are no longer monumental heritages. They are just like any other piece of land that is not on the watch list. That basically, whatever. I have a feeling loosening Nat'l Park restrictions without one iota of historical thought is one example of the core of the problem in America. Here's my solution. Let the pro-industry have their way with much of the American landscape outside of our National Park's. Their record in time will speak for itself. But the NP's are the one area of land that Nature is above humans. Because time and time again it has become so obvious that when humanity and Nature collides, Nature loses. Our National Park's being taken off the at-risk list? Think about it. It baffles me. It should also be noted that after having visited message boards on National Park websites, the things tourists are continally saying is that while they had a wonderful experience, the parks are overcrowded, over commercialized, and not enough attention is paid to what is an acceptable amount of tourist interaction. --4Seasons
"You need to be even more active in recruiting experts who are sympathetic to your view, and much more active in making them part of your message." Does this sound like advice that guided HHS Secretary Thompson in making his appointments to the Advisory Committee on Childhood Lead Poisoning Prevention? Well, it just may be, at least indirectly. The quote comes from Frank Luntz and the Luntz Research Companies, whom we met in the introduction. He's the Republican pollster and "message developer" (his term) who helped craft the Contract with America and who, more recently, wrote a memo laying out a public relations strategy that Republicans could use the spruce up their image on environmental issues. (The memo appeals mainly to antiregulatory, economically conservative Republicans, not to all Republicans and certainly not to the moderate Republicans who place a high value on federal environmental protections.) As noted in the first chapter, the Luntz memo has been very influential. These days you can't swing a stick without hitting a Bush official or the President himself giving a speech on the environment that bristles with "balance," "common sense," "accountable," and other market-tested words and ideas recommended by Luntz.
It's not suprising that the role of science in environmental issues gets the Luntz treatment. Luntz's marketing research revealed what any observer of environmental debates already knew: the perception of what the science says about an issue exerts enormous influence on citizens' attitudes toward that issue. As the Luntz memo puts it, "People are willing to trust scientists, engineers, and other leading research professionals." Toward the end of the memo, Luntz includes a model speech on the environment to serve as a template for antiregulatory rhetoric. In it he includes four key statements that he urges GOP politicians to use while speechifying, on of which is, "New regulations should be based on the most advanced and credible scientific knowledge available."
This is of course a fine sentiment with which no one would disagree publicly, but it is also a principle from which the President and many of his appointees routinely stray. When introducing his global warming plans in 2002, Bush said, "When we make decisions, we want to make sure we do so on sound science; not what sounds good, but what is real." But earlier in this chapter we saw some of the many ways in which the Administration has mistreated science in the global warming debate. Thousands of scientists have reached a consensus regarding some basic aspects of climate change, yet the Administration instead empahsizes the findings of a handful of dissenting researchers and information provided by corporations that stand to lose money if greenhouse gases are regulated. Clearly, the President is not basing decisions on the "most advanced and credible scientific knowledge available" nor using "sound science." The Bush subscribes--perhaps literally--to Luntz's propaganda approach to science, in which image triumphs over "what is real." Perhaps I should put this in Luntz parlance: When Bush and Administration officials alter or suppress information or present only one side of scientific discussion, they are behaving in a manner that runs counter to the goal of "balance." When confronted with such deceptive practices, "common sense" tells citizens that they should hold the President and his appointees "accountable." If this mistreatment of science continues and environmental policy drifts away from its scientific moorings, the natural world and human health also will be set a drift.
Advocates of cost-benefit analysis employ a number of methods to determine the dollar value of environmental and human health benefits. Alan Krupnick, Senior Fellow and Director of the Quality of the Environment division at a think tank called Resources for the Future, says that it's possible to put a price tag on more things than you'd think. "Sometimes there are clever ways of teasing our people's preferences of reducing their risk of having health effects or risk to the environment," says Krupnick. One common and representative method is called "willingness to pay" or "WTP." Researchers survey citizens to determine just how much they'd pay for a particular environmental good. In one famous example people on average said that they'd spend $257 per household to save bald eagles from extinction.
WTP and its kin generate considerable controversy, however. For example, critics worry that WTP researchers tend to reject responses from people whose comments don't fit neatly into the survey's approach, especially those people--"skeptics"--who question some of the survey's premises. For practical reasons surveys can't allow respondents to think outside the box: "They just have to put up or shut up," says Krupnick. A reputable practitioner like Krupnick will try to accomodate some of the skeptics' objections while developing the survey, but not all WTP surveyors do this. Critics also question the very foundation of WTP.
Continued on p. 216-17:
WTP also reveals a fundamental inconsistency in the attitudes of the promoters of cost-benefit analysis. On the one hand, WTP calls on ordinary citizens to make dauntingly sophisicated calculations, calculations that become keystones in the cost-benefit edifice. On the one hand, much of the impetus for the development of cost-benefit analysis stems from the expert analysts' deep mistrust of ordinary citizens. Many cost-benefit proponents believe that the public approaches environmental regulation in an uninformed , overly emotional way. (A favorite adjective is "hysterical.") This ignorant fear, according to the analysts, then gets incorporated into regulaory policy via Congress, a political body that bends to the will of the mob instead of following the scientific path the experts lay out. So which is it? Are you and I analytical geniuses or "paranoid" (a word Graham has applied to the public) ignoramuses? That sounds like a rhetorical question, but it's not. Except in the cases of WTP studies and their ilk, many cost-benefit practitioners consider regular folks "irrational."
Then there's WTA. Before I explain the acronym, let me pose two hypotheticals that Thomas McGarity, a law professor at the University of Texas, uses on his students every year. One: You get a glass of water. There's a one in a thousand chance that it contains a poison that will rapidly and painlessly kill you. McGarity has an antidote that he's willing to sell you. How much will you pay to allay that one in a thousand chance of death? That's WTP, willingness to pay. Two: You get a glass of water. There's a one in a thousand chance that it contains a poison that will rapidly and painlessly kill you. How much would McGarity have to pay you to drink that water and take that one in a thousand chance of dying? That's WTA, willingness to accept. "I promise you," says McGarity, "the amount is always much, much higher when it's a question of how much it would cost to get my students to accept the risk rather than how much they'd pay to get rid of the risk."
McGarity has another question, not hypothetical: "Why do econimists always use [in cost-benefit calculations] willingness to pay instead of willingness to accept, even though they all acknowledge that either can be seen as valid? Answering his own question, he says, "Because they want the number to be low," thus holding down the benefit side of the equation. McGarity says that cost-benefit practitioners don't like WTA because it tends to elicit what they see as unreal responses, such as someone asserting that it'd take $10,000 to convince him to accept the death of a bald eagle, as opposed to the $257 an average person theoretically is willing to pay to prevent that bird's death. In most economists' view a rational person couldn't possibly believe that an eagle's life is worth $10,000, ergo that person is irrational and any valuation technique that allows such irrational input isn't valid. Cynically, I must add that some practitioners likely stick to WTP and its much lower benefit figures simply because it caters to their vested interests. Mc Garity believes that the technical issues of WTP versus WTA reveals profoundly different views of environmental protection. "I would agree," he says, "that if you use willingness to pay as the measure, you're saying that the world is such a place that people can destroy our resources willy-nilly as long as we can't pay them enough to stop. Whereas, if you use willingnes to accept as the measure of these more or less priceless things, then you're saying that we live in the kind of society in which we have a right to clean air, clean water, etc., unless someone convinces us--pays us, if you want to call it that--but at least convinces us that it ought to be destroyed. Basically, in using willingness to pay, they are subtly forcing upon us a view of the world that says that development can proceed unless you persuade us to stop, which is exactly the opposite of how most people think of the world."
The Fox Is Guarding the Henhouse
During the 2000 presidential campaign, Bush offered clues as to how he would deal with the environment. In his speeches he said nice things about cleaning up pollution and protecting wildlife and supporting parks, even going so far as to make some specific promises (several of which he broke soon after assuming office). But people who looked beneath his words and heeded the old Watergate adage-follow the money-quickly saw where Bush's loyalties lay. The trail of campaign dollars led to big corporations and powerful industries, many of which will lose a lot of money if the federal government does a better job of protecting the environment, and will make a lot of money if the government weakens certain environmental regulations. The Center for Responsive Politics, a nonprofit, nonpartisan research group, took the campaign contribution data compiled by the Federal Election Commission and coded it by industry. Using that coded information, Public Campaign, a progressive public interest group, and Earthjustice, an environmental law firm, figured out how much money the various industries affected by environmental regulation had given to which politicians and political parties. Mining, timber, chemical and other manufacturing, oil and gas, and coal-burning utilities together contributed a staggering $44.1 million to the Bush-Cheney campaign and to the Republican National Committee.
Public Citizen and Earthjustice then did something even more interesting. They took the industry-by-industry breakdown of campaign contributions and compared it with the environmental policies undertaken by the Administration during Bush's first 18 months as president. For example, the timber industry gave $3.4 million and the Administration introduced and pushed an initiative designed in part to open up more federal lands to logging. In another example, the coal-burning utilities gave $2 million and the Administration has made regulatory changes and has not enforced existing laws so that these utilities can avoid the expense of installing the most effective pollution-control technology.
In evaluating the environmental record of any U.S. administration, journalists must try to separate factual criticism from political advantage. So, are the critics mostly members of the Democratic Party and trashing Bush because of partisanship? No, Devine concludes. He backs his conclusions with interviews, personal visits to sites of environmental contention and extensive use of documents, including federal agency studies, Congressional hearings and reports by scientists from around the globe.
On the other hand, Devine thinks the critics of the Bush Administration go too far when they say the President and his appointees are opposed to clean air and clean water.
I'd guess that Bush and his appointees would be perfectly happy to have clean water, clean air, abundant wildlife, lush forests and plenty of wilderness, Devine says. I don't think they would mind keeping species from going extinct, stopping harmful chemicals from being used as pesticides, arresting global warming and preventing pollution from killing people. Yes, they would say, these are nice things. Nice, but not important.
As journalists try to ferret out the truth about environmental policies and practices, Devine suggests they look for balance: We do need raw materials. We do need industry. We do need places upon which to build homes and human communities. We do need to live with some pollution. ... So the trick is to find ways to meet the needs on both sides of the equation in a manner that can be sustained indefinitely. ... The debate is about the balance.