Conservatives, and some liberals, are fond of calling for more flexibility in government regulation. In plenty of areas, they have a compelling case. One of the biggest obstacles to the achievement of greater flexibility, however, is widespread suspicion that administrators will exploit flexibility to subvert the law. Having administrators show good faith in exercising the discretion current law allows is therefore crucial to the cause of enhancing flexibility.

The Trump administration repeatedly has called for greater flexibility in the environmental area. It therefore would behoove it to demonstrate sincere efforts to honor the purposes of environmental statutes, especially the ones it most dislikes. This would reassure Congress that authorizations for flexible implementation of protections will not be tantamount to repeal. Unfortunately, the administration has shown little sign of proving its bona fides.

ADVERTISEMENT

A case in point was the release last week of internal Interior Department communications showing both an intent to disregard the law in building a road through the

Izembek National Wildlife Refuge

on the Alaska Peninsula and a concerted effort to conceal these plans from Congress and the public. Produced in response to a Freedom of Information Act request by

Defenders of Wildlife

, these documents show a firm determination to build a road that has been studied and repeatedly discredited for two decades.

What the documents do not show is any consideration of the Alaska National Interest Lands Conservation Act’s mandate “to provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation, including those species dependent on vast relatively undeveloped areas; to preserve in their natural state extensive unaltered arctic tundra, boreal forest, and coastal rainforest ecosystems.”

Nor do they show the administration taking seriously the statutory requirements that any elimination of protection for wilderness areas be announced to the public and the subject to public hearings. To the contrary, the officials plotted how to prepare for the road to be built without the public noticing.

As cynical as this is, it is also tragic because the Izembek Refuge is a special place. When we think of Alaska, we ordinarily think big, but that is not the Izembek Refuge: It is smaller than Nashville. But because of its strategic location on migratory flyways, it provides a crucial stopover for a wide variety of birds, some of them rare and endangered. Its centerpiece is the lush Izembek Lagoon, which is separated from Cold Bay by a thin finger of marshy land. The proposed road would go right down that finger of land, inhibiting animals’ ability to cross over and destroying vital nesting areas. In the close confines of the Refuge, there simply is no room for the road without doing serious damage to wildlife.

The supposed rationale for this road — to facilitate medical evacuations from the small village of King Cove — does not bear serious examination. During the Clinton administration, Congress already responded to this concern by paying for dramatically upgraded health care facilities in King Cove and buying the village a state-of-the-art hovercraft for medical evacuations. The $50 million price-tag represented more than $50,000 per resident of King Cove. (So much for the complaints that are depriving residents of access to health care: most people would be thrilled to receive a subsidy of even a fraction of $50,000.)

After a few years, however, King Cove gave the hovercraft away. Road-building proponents claim it could not be relied upon in bad weather — but the Interior Department has found that ice, snow, and mud will render the proposed road treacherous or impassible much of the year.

The hovercraft probably could operate many more days of the year than the road, and fishing boats can access King Cove almost year-round for a quick trip to the Cold Bay airport. Proponents also claim that the hovercraft was expensive to operate — but upkeep on the road will be almost as expensive.

If the medical evacuation rationale for the road is starting to smell fishy to you, you could not be more right. It turns out that the true purpose of this road is hauling fish for a company in King Cove. (The hovercraft probably would not have been much good for that.) Because few would support scarring the delicate wilderness of Izembek for fish trucks, the medical evacuation rationale of two decades ago had to be revived.

When the administration abuses, and exceeds, the discretion it already possesses to do covert, cynical favors for industry under false humanitarian pretenses, the only lesson that people who take environmental protection seriously will draw is that all flexibility must be systematically removed from statutes. This Congress may not, but future ones will, and they will tie the hands of future administrators trying in good faith to balance legitimate competing public policies. And that will be a loss for us all.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities