Regulatory Reform

The EPA’s Assault on State Sovereignty Part I

Well timed with the President’s climate change agenda announcement, the American Legislative Exchange Council just released a report which sheds light on the U.S. Environmental Protection Agency’s (EPA) ongoing usurpation of regulatory control from the states.  Titled The U.S. Environmental Protection Agency’s Assault on State Sovereignty, the report highlights the most recent examples of how the EPA has (1) consolidated and centralized environmental regulation and (2) implemented especially onerous regulations that have placed undue burdens on states.

This first blog post in a two-part series summarizes how the EPA has centralized the power to regulate environmental protection at the expense of the states’ rightful authority.  A second post published tomorrow will discuss the needlessly onerous regulations that have recently been implemented by the EPA.

It is important to note that when Congress created the EPA in 1970, they envisioned a partnership between the agency and states where the two entities could work together to effectively balance economic progress with environmental protection.    However, over the past few years, the EPA has radically shifted this balance of power by systematically nationalizing environmental protection while also adopting a confrontational relationship with the states.

Three specific examples of this centralization of power are (1) regulatory disapprovals and takeovers by the EPA, (2) “sue and settle” agreements, and (3) the proposed expansion of the Clean Water Act.

Regulatory Disapprovals and Takeovers

Under both the Clean Air Act and Clean Water Act, the EPA has the authority to “disapprove” a state’s strategy to meet national environmental standards.  Since state officials spend countless hours and taxpayer resources to develop implementation plans, these disapprovals are no small matter.  Analyzing the number of regulatory disapprovals during differing presidential terms reveals a disturbing trend—the number of disapprovals has skyrocketed with the current administration. President Clinton’s second term had 44 disapprovals. President Bush’s first term had 42 and his second term only had 12. President Obama’s first term had an unprecedented 95 regulatory disapprovals.

Even more alarming is the precipitous increase in the number of EPA takeovers of state regulatory programs. Known as “federal implementation plans,” or FIPs, this is the EPA’s most confrontational action as a FIP entails the complete usurpation of a state’s regulatory authority. From 1997 through 2009, there were only two FIPs imposed by the EPA. Since 2009, there have been 19.

Sue and Settle Tactics

Forty percent of the EPA’s regulatory takeovers and aforementioned FIPs were derivatives of “sue and settle,” a legal strategy by which the agency effectively replaces state participation with that of environmentalist groups like the Sierra Club. Since 2009, the EPA has imposed at least $13 billion in annual regulatory costs that resulted from sue-and-settle litigation.

Here’s how it works: An environmentalist litigation outfit like the Sierra Club sues the EPA for failing to meet a deadline for regulatory action pursuant to the Clean Air Act or Clean Water Act. Instead of challenging the suit, both the EPA and the environmentalist groups immediately engage in friendly negotiations, which lead to a settlement that determines a deadline. By dictating how the EPA should use its limited resources, these settlements effectively render official policy.

During the three presidential terms prior to President Obama, sue and settle activity totaled 30 agreements. The EPA had 48 such agreements during just President Obama’s first term.

Clean Water Act Expansion

Another concerning element of EPA’s centralization of environmental regulation is a pending rule that would significantly expand the EPA’s federal jurisdiction under the Clean Water Act. In 2011, the EPA and the U.S. Army Corps of Engineers sought comment on a new interpretation of “navigable waters.” The proposed guidance is so amorphous that nearly every drop of water could fall under the EPA’s jurisdiction. The agency’s interpretation is so expansive that it expressly refuses to categorically exclude swimming pools and ornamental ponds, saying that these water features are only “generally exempt” from federal regulations.

EPA and the Army Corps of Engineers have estimated that the annual costs of implementing the 2011 interpretation of the term “navigable waters” will be upwards of $242 million, and they arrived at that number without taking into consideration permitting costs, the increased delays associated with expanded federal jurisdiction, and the costs of new land use restrictions.

Check in again tomorrow to see how the EPA has continued to place undue burdens on states and read the full report here.

In Depth: Regulatory Reform

In his first inaugural address, Thomas Jefferson said that “the sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry.” Sadly, governments – both federal and state – have ignored this axiom and…

+ Regulatory Reform In Depth