Protecting the Nation’s Environment From the EPA

A victory for property rights and individual liberty came via the unanimous Supreme Court decision earlier this month against EPA’s ability to control the “environment” on private property—though their use of wetlands “jurisdictional determinations” under the Clean Water Act. The high court’s opinion states that land owners are now able to challenge government agencies that attempt to assert control over the environment of private property before any permitting process by the owner begins—versus after the owners expenditure of time, effort and expense to obtain a permit. Furthermore, this court’s decision will limit the government’s ability to restrict land owners activities through the application of EPA’s “Waters of the United States” (WOTUS) rule issued last year.

This is the second major SCOTUS decision this year to go against the EPA—the other being the stay issued in February against EPA’s Clean Power Plan. Compared to previous administrations, this EPA appears to be spending way too much time in court defending its actions, and not nearly enough time effectively protecting the nation’s environment. Some of the agency’s actions, or inactions, have resulted in environmental damage. Two glaring examples are last year’s contamination of Colorado’s Animas River drinking water supply, and the ongoing lead contamination of drinking water in Flint, Michigan.

Then there is the fallout from EPA’s regulatory agenda—particularly the Clean Power Plan—their crown jewel of carbon emissions rulemaking. Although the CPP was stayed, EPA officials are not deterred and are now moving ahead with key components of the plan, particularly in those 17 states lead by democrat governors. The EPA may be flagrantly violating the law by ignoring the Supreme Court ruling on the CPP. According to the electric utility industry, 30 states, and their state agencies, all of whom are suing to eliminate the plan—EPA is absolutely in violation. 

There is also demonstrated collusion between EPA employees and outside environmental interests. FOIA requests and legal depositions have revealed a pattern of illicit email trails and phone calls between EPA officials and radical environmental groups. In some cases the outside groups have actually “co-authored” EPA regulations—creating a circus out of federal agency rulemaking—which is supposed to be based on transparent public participation and not "insider trading" by the environmental movement.

For example, a considerable amount of collusion with outsiders is known to have occurred while EPA was crafting the Clean Power Plan. The evidence includes a tranche of emails discovered on a private email account that indicate outside environmental interests heavily influenced EPA policy on regulating coal-fired power plants. Other EPA collaboration with outsiders include its former Administrator, Lisa Jackson, who in 2010 resigned after being caught using a private email account to correspond with environmental activists about EPA activities.

Other email trails indicate that EPA, for several years, had been colluding with environmentalists opposed to the Pebble Partnership developing a major copper-gold deposit in southwest Alaska. During verbal discovery in March in the Pebble case, an EPA employee, Mr. Phil North, freely admitted that he was providing outside environmental groups unprecedented access to the EPA decision making process involving the Pebble lease—which is on state, not federal land. Not surprisingly, the agency’s regional administrator for Alaska testified to a congressional committee that he had not read the deposition and was not willing to look into the matter further. Nevertheless, the U.S. is now facing the possibility of a lawsuit because Pebble’s parent company, Northern Alliance is Canadian and is protected under the North American Free Trade Agreement (NAFTA).

Then there is the destruction of federal-state partnerships that have been built up over the years, caused by states lack of confidence in EPA actions. For example, strident EPA rulemaking has resulted in more states going to court to stop promulgation of blanket federal regulations that are of questionable benefit to states. These regulations include hydraulic fracturing, methane emissions, and mandated ozone levels related to energy development, manufacturing and industrial activity—all above and beyond the Clean Power Plan.

Other legal challenges to EPA include the 27 states that have sued to block the EPA’s Waters of the United States (WOTUS) rule, which dramatically expands Federal authority over local construction activities, including energy projects, nationwide. In the East, 21 states sued EPA over its Chesapeake Bay cleanup plan, asserting that the plan represents "…the culmination of EPA's decade-long attempt to control exactly how states achieve federal water quality requirements (under the Clean Water Act), and marks the beginning of the end of meaningful state participation in water pollution regulation." In the West, Utah, Colorado, and New Mexico will see EPA in court over the agency’s disastrous accidental heavy metal sludge contamination of the Animas River that has affected the drinking water of three states and the Navajo Indian Reservation. 

Clearly, this EPA has continued unabated to exert unprecedented “environmental control” over the air, land, and water of the U.S. using numerous unpopular rules and regulations. The continued overregulation and outside collusion require ever greater amounts of EPA’s time in court to answer for their actions—ostensibly leaving less time for environmental protection responsibilities—if they were ever so inclined. In short, their actions are threatening to unravel the long-established, important, and legitimate fabric of environmental protection developed since the agency’s founding almost 50 years ago. What greater irony is there when the environmental stewardship of the several states needs to be legally protected from the federal Environmental Protection Agency.