Congress Moves to Block EPA’s Land Grab

Published December 4, 2014

Republican lawmakers are pushing hard to corral President Obama’s rogue Environmental Protection Agency with stringent bills and a blunt warning against finalizing its most dangerous land grab ever, the pending redefinition of “Waters of the United States,” or WOTUS, which would seize power over almost any property that gets wet regardless of what it is or who owns it.

Sen. David Vitter, R-La., top Republican on the Environment and Public Works Committee; Rep. Bill Shuster, R-Pa., chairman of the House Transportation and Infrastructure Committee; and every chairman and ranking member of every congressional committee and subcommittee with jurisdiction over the EPA and its co-regulator, the Army Corps of Engineers, have signed a strongly worded 14-page document warning the agencies they “must abandon” the new rule and that “Congress did not sanction this approach in the Clean Water Act, and the Constitution forbids it.”

EPA Administrator Gina McCarthy, underestimating congressional oversight power, defiantly said she “has no intention of backing down on major environmental initiatives to fight climate change and improve air and water quality.”

She ignores widespread fear the Obama administration is merely using environmental rhetoric as a justification for power grabs that are turning America into what looks to many like an incipient police state.

McCarthy dismissed the recent demands of six governors and 11 state attorneys general, along with 25 Republican U.S. senators, who told the agency it must withdraw the proposed waters rule because it threatens farming and ranching, oil and gas production, urban construction and nationwide economic development generally.

The Daily Signal has learned that private talks between state attorney general lawyers and EPA officials have not succeeded in altering the agency’s approach. Oklahoma Attorney General Scott Pruitt told a Washington, D.C. meeting that if the rule is imposed, litigation could be expected within 60 days.

Against this increasingly tense background, the congressional chairmen sent their blunt Nov. 13 letter, saying, “WOTUS subverts the Constitution, Congress, as well as the Clean Water Act,” and “threatens individual liberty and property rights by giving EPA and the Corps virtually unlimited authority under the Clean Water Act.”

The chairmen indicted the rule in the strongest terms. It “undermines the text of the Clean Water Act and misconstrues Supreme Court precedent;” and “is antithetical to the Constitution’s guarantee of federalism,” they wrote.

The chairmen highlighted three intolerable menaces:

  • The rule presents a grave threat to Americans’ property rights, and it will force landowners nationwide to live with the unending prospect that their homes, farms or communities could be subject to ruinous Clean Water Act lawsuits.
  • The rule would centralize the regulation of streams, lakes, ponds and ditches rather than preserve the prerogative of the states to manage purely local water bodies.
  • The rule would force those who wish to build a home, expand a small business or increase their crop production to buy a permit from the federal government or face potential fines of up to $187,500 per day for alleged Clean Water Act violations.

The chairmen particularly noted EPA’s biased “effort to invent scientific support for expanded jurisdiction.” The problem of “phony crony baloney” science supported by puppet science advisers who rubber-stamp anything the agency wants has characterized the Obama administration, leading to Republican discussion about surgically removing specific enforcement appropriations from the EPA budget.

McCarthy scoffed at the threat but appears genuinely frightened by a more straightforward approach at reining in her power.

The House of Representatives has passed two bills, one aimed at the EPA’s notorious use of hidden science to justify its regulations, the Secret Science Reform Act (H.R. 4012), and the other to eliminate overly compliant science advisers, the EPA Science Advisory Board Reform Act (H.R.1422).

The Secret Science Reform Act, passed on a bipartisan vote of 237-190, prohibits the EPA from enacting or proposing regulations without first publishing for independent review the science on which they rely. That would stop EPA from secretly colluding with environmental groups to make ideological anti-industry rules behind closed doors and out of public view. That bill has environmentalists and insider scientists fretting.

The EPA Science Advisory Board Reform Act, which passed on another bipartisan vote of 229-191, opens scientific deliberations to public participation, increases the transparency for selecting advisors and ensures science remains the board’s focus.

The Science Advisory Board currently excludes scientists from the regulated community and allows independent scientists to tout their own research. EPA officials hand-pick advisers, most of whom have received grants from the EPA, giving these advisors an incentive to recommend only what the money wants to hear. The Science Advisory Board, as now constituted, bans the public from inspecting its science. The reform bill would cure these defects.

Rep. Cathy McMorris Rodgers, R-Wash., chair of the House Republican Conference and the highest-ranking Republican woman in Congress, told The Daily Signal, “Any and all EPA-produced guidelines and regulations impacting jobs must be fair and balanced, and through this critical legislation we are holding the agency accountable for the proposals it introduces.”

“By increasing transparency within the EPA, we are enabling more public participation from stakeholders and involved parties – because their thoughts and ideas should be paramount to the discussion regarding job creation,” she added. “We must hold the EPA accountable and must ensure regulations impacting our economy be based on scientific fact.”

The White House Office of Management and Budget complained bitterly and recommended President Obama veto the legislation: “The [a]dministration strongly opposes H.R. 1422, which would affect the ability of EPA’s Science Advisory Board (SAB) to form panels and perform its essential functions,” and “add burdensome requirements on the SAB with respect to solicitation of and response to public comments.”

A president whose administration sees public comment as a burden is doomed to get a lot of it during his final years in office.

[First published at the Daily Signal.]