This article originally appeared at Forbes and has been republished here with the author’s permission.
The Environmental Protection Agency has been in the news a lot lately–and as usual, the news isn’t good. EPA continues to be a paragon of zealotry, politicization and operational incompetence.
Last August, its experts and contractors unleashed three million gallons of contaminated mine wastewater into Colorado’s Animas River, polluting waterways in three states and likely costing taxpayers $28 billion in remediation costs. Investigators determined that EPA not only knew the risks beforehand and kept them to itself, but failed to notify state authorities until 24 hours after the disaster.
Another outrage was EPA’s collusion with environmental activists to benefit green energy subsidy-seekers, as regulators formulated and promoted their Power Plan. And just two months ago, the Government Accountability Office denounced the agency for illegally engaging in “covert propaganda” and “grassroots lobbying” in order to promote its Waters of the United States regulation, now stayed by the Sixth Circuit Court of Appeals.
Perhaps worst of all, in January EPA officials acknowledged knowing a full year ago that Flint, Michigan’s municipal water system had a problem with lead contamination. Still, they publicly maintained that the city’s water was safe, and when the facts finally emerged, they sought to deflect blame onto Republican Governor Rick Snyder. It was weeks before the culpable Regional Director was fired.
There is ample evidence that the EPA is consistently neither competent nor trustworthy. This month the U.S. Supreme Court will decide whether to hear a case–American Farm Bureau Federation v. EPA–that, if not reviewed (and reversed), will entrust to EPA the power to control every land use decision in the nation.
The history is that in October, the Third Circuit Court of Appeals upheld an unprecedented Obama Administration transfer of power to EPA from the states of the Chesapeake Bay watershed–Virginia, Maryland, Delaware, Pennsylvania, New York, and West Virginia–as well as the District of Columbia. A refusal to review that decision would constitute one of the Supreme Court’s most important–and misguided–environmental decisions in years.
Just months after taking office in 2009, President Obama signed an Executive Order instructing the EPA to “make full use of its powers” under the Clean Water Act to restore the Chesapeake Bay’s water quality. The regulators were to construct “watershed-based frameworks that assign pollution reduction responsibilities to pollution sources …” in a manner that “can be replicated throughout the nation.” In other words, EPA was to develop a template for exercising federal control over all sources of water pollution nationwide—a sort of national blueprint, applicable over time to every U.S. “watershed.”
Definitions are critical. The U.S. Geological Survey says that a watershed “consists of surface water–lakes, streams, reservoirs, and wetlands–and all the underlying ground water”; and EPA in turn defines wetlands broadly as “areas where the frequent and prolonged presence of water at or near the soil surface drives the natural system.”
That potentially gives EPA control over virtually every square inch of land in the country.
The Clean Water Act (CWA) addresses agriculture, forests, and runoff from streets and lawns differently than factories, sewage facilities, and power plants. For these “non-point sources” EPA sets water-quality goals for federal waterways like the Chesapeake Bay, but each state is permitted to determine how to achieve the goals. “It is the policy of Congress,” the Act says, “to recognize, preserve and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution, to plan the development and use … of land and water resources …”
But EPA used Mr. Obama’s executive order to reinterpret a key provision of the CWA, the so-called Total Daily Maximum Load (TDML) provision. TMDL is a means of expressing standards for sediment and nutrients in national waters. For the Chesapeake Bay watershed, the agency tortured the meaning of “total.” It divided the 64,000 square miles of the watershed into more than a thousand separate sub-areas and categories. To each area and different use of land — agriculture, timber, and the like — EPA assigned separate limits for sediment, phosphorus, and nitrogen in runoff. It then gave itself ultimate authority over every detail of how each small subset would reach its target, no matter how distant it was from flowing waters.
In this context, the “rights of States” were transformed into an obligation to carry out EPA’s detailed orders, or face crippling penalties. EPA is now poised to tell farmers to stop farming and builders not to build – in effect, to become a national zoning board.
Over the past fifteen years, in SWANCC v. US Army Corps of Engineers (2001), Rapanos v. US(2006), and Georgia-Pacific West v. NEDC (2013), the Supreme Court has rejected all attempts by EPA and others to weaken the Clean Water Act’s deference to states. If it declines to hear American Farm Bureau Federation v. EPA, the Court will effectively reverse those decisions. It will upend Congress’ balancing of federal and state regulatory responsibilities and the Clean Water Act’s protections for citizens and their property against federal abuse and incompetence.
A Supreme Court decision handed down only yesterday offers some cause for optimism. The court temporarily blocked another sweeping proposed EPA rule, which would regulate emissions from coal-fired power plants. It was challenged by 29 states, which called the rule a “power grab” under which “the federal environmental regulator seeks to reorganize the energy grids in nearly every state in the nation.”
Failure to hear and reverse AFBF will legitimate EPA’s Clean Water Act power grab, not just for the Chesapeake watershed but, in time, for virtually the entire country.
enry I. Miller, a physician, is the Robert Wesson Fellow in Scientific Philosophy & Public Policy at Stanford University’s Hoover Institution. He was the founding director of the FDA’s Office of Biotechnology. Follow him on Twitter @henryimiller.
