Recent Bureaucratic Activities Fly in the Face of Congressional Intent
A frequent criticism of the current federal regulatory process is that federal departments and agencies (while oftentimes citing the Chevron deference) promulgate new regulations that conflict with congressional intent. Such departments and agencies are inherently incentivized to regulate in order to justify their budgets and, indeed, their very existence.
The Clean Water Act (CWA), for instance, directs the U.S. Environmental Protection Agency (EPA) to work with the states and other agencies to regulate discharges of pollutants into waters of the United States and quality standards for surface waters. However, the CWA explicitly exempts permitting requirements for activities related to “normal farming” practices. Nevertheless, EPA and the U.S. Army Corps of Engineers (ACE) have continuously and deliberately misinterpreted “normal” to mean “existing and ongoing,” requirements never intended by Congress. Under such an interpretation, farmers who merely decide to grow different crops could be subject to new regulation.
Similarly, EPA jurisdiction under the Clean Air Act (CAA) has also greatly expanded over recent years. Only in 2011 did EPA – in part due to the Massachusetts v. EPA Supreme Court decision – begin to regulate greenhouse gas emissions under the CAA. Former Representative John D. Dingell (D-Mich.), a co-author of the law, has long maintained that Congress never intended for greenhouse gases to be regulated under the CAA as written.
In 2009, however, Congress tried and failed to pass the Waxman-Markey cap and trade bill, despite both chambers having large Democratic majorities. This past summer, due in large part to the failure of Waxman-Markey, EPA finalized its so-called Clean Power Plan, targeting greenhouse gas emissions from fossil fuel-fired power plants under Section 111 of the CAA. In the final version of the rule, which has been stayed until the litigation is settled, states are allowed to create Waxman-Markey inspired emissions trading programs in order to comply with the regulation. In other words, through executive fiat, EPA has circumvented the legislative process by crafting environmental policy that Congress was unable to pass.
Take Sen. Ed Markey’s (D-MA) word for it:
Much of what the president has done since , and even if you look at the Clean Power Plan, it’s based largely on what was inside of the Waxman-Markey bill that [the House of Representatives] passed. So we had worked out the partnerships, to coalitions, that were still there when the president decided to develop the Clean Power Plan. So I think it was actually a very helpful political process to have gone through.
This is clearly not how our federal government is supposed to work.
Luckily, Speaker Paul Ryan has offered several regulatory reforms in his “A Better Way” series of policy proposals that would help bring federal regulatory bodies under control.