Conservatives and Environmental Regulation

Published: 
Thursday, October 3, 2013
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There is fairly broad opposition to centralized environmental regulation within the Republican Party today.  Conservative activists in particular focus their ire on the Environmental Protection Agency and federal efforts to maintain or enhance environmental quality.  It was not always so.  The American conservation movement has roots on the right side of the political spectrum and much of today’s environmental architecture was erected under Republican leadership.  President Nixon signed the National Environmental Policy Act and created the Environmental Protection Agency while President Bush (41) supported and signed the 1990 Clean Air Act Amendments, the most expansive (and expensive) piece of environmental legislation to date.  Today Republicans in Congress are fairly united in their opposition to using the 1990 Clean Air Act to regulate greenhouse gases.

Judith Layzer’s Open for Business: Conservatives’ Opposition to Environmental Regulation chronicles the rise of anti-regulatory conservatism. I review Layzer’s book in the Summer issue of The New Atlantis. As Layzer notes, the fervor anti-regulatory sentiment on the political right has not been matched by a commitment to developing alternative approaches to environmental protection. Indeed, it seems that many conservatives are content to accept that regulatory stringency and expansiveness is a sound proxy for environmental protectiveness. This is one reason that anti-regulatory conservatism has not been particularly successful politically.

Anti-regulatory rhetoric may be pervasive, but federal environmental regulation has continued to expand, under Democratic and Republican presidents alike. Anti-regulatory conservatives have been able to stem the tide of regulatory initiatives, but only for a time. The failure to develop and advance non-regulatory alternatives to environmental problems has compromised efforts to constrain the EPA’s regulatory authority. There are plenty of Americans who are suspicious of federal regulation, but they nonetheless prefer federal environmental regulation to no environmental protection at all.

The failure of anti-regulatory conservatism is on display in the current fight over federal regulation of greenhouse gases. House Republicans oppose such regulation (and for good reason), but they have not put forward any alternatives (and many refuse to accept that climate change could be a problem). Nonetheless, federal regulation of GHGs marches on. The EPA just proposed another set of rules last month. Blanket opposition to federal GHG regulation failed to prevent (or even appreciably slow) such regulation, and time is running out. As GHG emission controls get imposed, and companies invest in the necessary control technologies, the political support for constraining EPA authority over GHGs will decline. Utilities may not want to give up coal or install costly carbon capture technologies, but once they’ve made these investments they will hardly want to see the regulations removed. If these rules are not stopped soon, it will be too late. This is a reason even those who refuse to accept the likelihood of climate change should consider alternatives to command and control regulation. Shouting “No” is insufficient to ensure success.

Here is how I conclude my review:

Layzer observes that “although most Americans still claim to be sympathetic to environmental goals, resistance to government action in pursuit of those goals is widespread.” To Layzer this is a paradox. To others it may be evidence of a latent public understanding that there is more than one way to advance environmental values. Pursuit of a greener society need not come at the expense of individual liberty or economic growth. By tacitly accepting the conventional assumption that regulatory stringency is a measure of environmental protectiveness, Layzer simplistically assumes that those who would challenge conventional regulatory strategies are opposed to environmental protection in general. The problem for environmental policy is that too many conservatives accept this assumption as well.

Cross-posted at the Volokh Conspiracy.

Jonathan Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is a prolific scholar, publishing on such topics as regulatory takings, water marketing, fisheries management, and the judicial limits of federal environmental regulation.He is the author, editor...
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