Memo From the President’s Environmental Task Force

2] Don’t Enforce Existing Laws, Ignore Court Orders

This works. When we came into office, a court had just ordered the EPA to issue new and totally unnecessary regulations on emissions from cement kilns. We blew it off. Three years later the greens noticed and went back to court. This pushed back the deadline until 2006, another deadline we can probably ignore. This goes for regulations on mercury, hydrogen chloride and other chemicals. Those regs were due by 2001, but now we’ve got until 2006 to think of new reasons not to do the regs or simply not do them and not explain. What are they going to do? Throw the entire EPA into jail? Not likely. Another useful technique is to enforce certain laws very selectively. For example, the Endangered Species Act requires us to designate “critical habitat” for protected species. In deciding which lands to include in the designation, the agencies are supposed to calculate the benefits and costs of the designation—how many jobs will be lost, things like that. We inflate the costs and ignore the benefits—what’s the benefit of a salamander after all? This allows us to cut critical habitat to an absolute minimum. And if we succeed in Congress (see point 10) we won’t have critical habitat to bother us at all pretty soon.

3] Rewrite Rules Administratively

We actually have a great deal of discretion and flexibility in writing—and rewriting!—rules under statutes like the Clean Air and Clean Water Acts, the forest management law, the Endangered Species Act, and the rest. We had a particularly gratifying success when we rewrote regulations under the National Forest Management Act and got the public nearly pushed out of the process altogether. The greens filed suit, of course, but we think we’re on track. In fact, the public is altogether a gigantic problem in all these areas (see point 7). Another big administrative rewrite concerned the so-called Roadless Area Conservation Rule, shoved down our throats at the tail end of the Clinton administration. It was challenged by nine separate lawsuits that we declined to defend against (see point 11), and in two cases the judges—in Idaho and Wyoming—blocked the rule, which was just fine with us. The environmentalists managed to appeal the Idaho injunction and get it blocked. They tried to appeal the Wyoming injunction as well, even though they were only intervenors in the cases. We bought lots of time by promising to support the rule. Eventually, we yanked the rule altogether and issued a replacement with a wonderfully clever twist—we offered to ask state governors to advise us what to do with the forests in their states, though we did not promise to take their advice. (This gives us flexibility: If Governor Richardson in New Mexico, for example, or Kulongoski in Oregon asks us to protect their forests we can ignore them; if Governor Huntsman in Utah and Governor Freudenthal in Idaho ask us to open their forests to logging we can approve their petitions.) Not surprisingly, extremists filed suit against the new rule, but not to worry—their legal action should keep them busy for years.

4] Issue Guidance Documents

Sometimes you don’t have to bother with a formal rulemaking procedure. Take wetlands. We floated a proposal a year or two back to rewrite Clean Water Act rules and eliminate protection for all the tedious little creeks and streams—some of which are so insignificant they actually dry up in the summer—and protect only real, honest, red-blooded rivers. The tree huggers kicked up a huge fuss and even Congress got excited, so we withdrew the proposal—but left in place a guidance document that orders the Corps of Engineers not to protect “wetlands” without specific authorization from on high, and you know how often they’ll get that.

Creativity is the watchword. Sometimes you can simply change the thrust of a document and achieve what you want. For example, back in the dark year of 1998, the EPA was forced to agree to study and report on the impact of what the extreme environmentalists call “mountaintop removal coal mining” on rivers and streams. When we came to office we simply changed the report so that it would investigate ways to “centralize and streamline” the permitting process. So we got two birds with one stone—quicker permits and no big problem with some trivial little creeks.

5] Use the Expertise of our Friends

Vice President Cheney, early in our first term, took the lead on devising a solid, conservative, and long-overdue energy policy for the country. To help him he turned to the experts, our friends in the energy industry—oilmen, natural gas producers, nuclear experts. He convened a task force of these energy experts and asked them to write an informed policy statement. This was an informal gathering so there was no need to hold public meetings, invite labor representatives, “policy wonks,” environmentalists, or others to participate. The Sierra Club sued to make public the composition and deliberations of the task force, but lost, and we got a wonderful energy policy as a result. This technique is useful in many arenas. For one more example, the U.S. Trade Representative has a whole bunch of committees that advise him or her on what positions to take in negotiations involving chemicals, wood and paper, and a host of other matters. The committees are to be “balanced,” but there are ways to cope with that: In addition to our industry friends we generally appoint friendly professors or other academics to fill slots allotted to the public or environmental organizations.

6] Use Science and Scientists to Your Advantage

To the public, science is quite a mystery, best left to the experts. When experts disagree, people figure it’s just another squabble between effete intellectuals. So when scientists within the Forest Service or the Fish and Wildlife Service or the Environmental Protection Agency say that we should protect this or that species, or when someone in the EPA says that pollution controls aren’t strict enough, their superiors can simply ignore them or order them to revise their pronouncements. Much has been made of the ill-begotten Kyoto Accords, negotiated by Al Gore. Most scientists are said to support it, but that’s because they’re not economists. We know it would be a major impediment to industry, and that’s why President Bush withdrew U.S. support for the treaty. And again, we can always find our own scientists who will insist that global warming has not been proven. If the science is too well established to refute, we can change strategy to encourage “adaptation”—recognizing that global warming is real, but arguing that we simply have to get used to it.

7] Eliminate the Public from the Process

One great hindrance to our agenda is the extent to which the Bambi lovers and other left-leaning organizations meddle in federal government decisions. This is partly because of ill-considered laws passed over the past few decades that invite such groups to sue the federal government any time they please, and improper activism on the part of some judges who have encouraged the process. One law—the National Environmental Policy Act—is a particular problem. It encourages public hearings and public comments that can tie up good projects and proposals (mines, timber sales, pipelines, oil and gas exploration) for years. To that end, the Republican leadership in the House has appointed a task force to collect horror stories about the misuse and abuse of this law. To ensure the outcome we want, the witness lists at the hearings had a few token extremists with the balance made up of experts from the timber, chemical and energy industries (and emphasizing their “credentials” in the field). There is hope, with two new appointments to the Supreme Court (see point 9) that we can finally limit all the nuisance suits the extremists bring, as Justice Scalia has been trying to do for many years.

8] Unmask Our Opponents

Never miss a chance to blame our opponents for natural disasters. Within a few days of Hurricane Katrina’s rampage through Louisiana and Mississippi, we were pointing out that a lawsuit filed 30 years before by local green groups had stopped the Corps of Engineers from strengthening levees that later failed and drowned New Orleans. It wasn’t strictly true, but it was a great story and was covered widely. We have had great success blaming environmentalists for the damage wrought by wildfires, since they have held up so many forest-thinning projects. This isn’t strictly true either, but the principle is there and it makes for good copy. The newspapers love it.Likewise, we argued successfully that the Earth First! types are responsible for the woes of the timber industry by favoring owls and fish over children and jobs. This is an extremely fertile field. Remember, these people don’t really care about the environment: in truth they hate America and they hate capitalism. Remind the public of that fact every chance you get.

9] Fill the Courts with People Who Agree With Our Philosophy

Since the election of 2000 we have succeeded in getting 200 members of the Federalist Society confirmed as district court judges, appeals court judges, even Chief Justice of the United States. The importance of this cannot be overstated. These people serve for life, and will carry our agenda in the courts for decades. We had a little misstep with Supreme Court nominee Harriet Miers, but that won’t be repeated. We’re hoping that Chief Justice Roberts and soon-to-be Associate Justice Alito will follow through with earlier writings that indicate their firm belief that most of the environmental protection activity of the federal government violates the Commerce Clause of the Constitution. We’re also cautiously optimistic that the new Supreme Court will close the courthouse doors to dangerous and radical voices of dissent.

10] Enlist Congress to Amend or Repeal Certain Laws

This is both obvious and straightforward. When we have the numbers, and key people (Richard Pombo, Tom DeLay [he’ll be back!], Ted Stevens, et al.) in influential positions in Congress we can work with them to amend or repeal the laws that stand in the way of our agenda. We’re doing just that with respect to the Endangered Species Act right now, and plan to do the same to the National Environmental Policy Act soon. One useful technique we’ve used again and again is to attach “riders” to must-pass appropriations bills. These are frequently not noticed by many people including the media and there’s no need to hold time-consuming hearings. Much can be accomplished this way.One other arrow for your quiver—the budget reconciliation bill. The appeal of adding provisions to that bill is that it cannot be filibustered in the Senate. This is how we nearly got drilling in the Arctic wasteland approved recently. This noble effort fell short, but the setback was only temporary.

11] Take Full Advantage of the Courts

In dozens of instances, the administration has been sued by states, counties, developers, timber companies or other friends. Upon occasion we have even suggested to our allies in business and government strategies by which they might succeed in court in getting rid of rules or policies we both find onerous. Once a case has been filed, we either mount a nominal but weak defense or simply settle the case on terms favorable to us and the plaintiffs. One advantage of letting a case reach judgment is that, if there is considerable public uproar over the outcome, we can simply blame the courts (see point 3). A win-win proposition. The greens will try to intervene in these cases, but if you work fast enough, as we did a couple of years in a wilderness case in Utah, you can get the matter wrapped up before anyone outside knows what is going on.

12] Find Attractive Names for Your Proposals

No matter what it is that you’re trying to achieve, it is essential to find a catchy, attractive, appealing name for it. We’re calling our program to relax air pollution regulations on refineries and power plants the “Clear Skies Initiative.” We called our modernizing of Forest Service rules that will allow our industry friends to cut more trees on the national forests the “Healthy Forests Initiatives.” Many newspaper readers won’t get past the name of a new initiative, so it’s essential to choose one that’s benign.

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Republican pollster Frank Luntz’ Notorious Environmental Memo

George Lakoff’s Don’t Think of an Elephant