Barack Obama swept into the Presidency promising a new political order, one characterized by “transparency” and “openness.” Three years later, the President’s lofty campaign promises are belied by the Environmental Protection Agency’s record of suppression.
Federal agencies cannot issue regulations willy-nilly; rather, they are bound to rules stipulating administrative procedure, in order to ensure the voice of affected parties is heard. Obama’s EPA, however, evinces a troubling tendency to circumvent these procedural rules. Regulated entities are being subjected to controversial, onerous regimes, before they even have the opportunity to read the rules, much less voice an objection. The wayward Agency is exercising an unanswerable power, straight out of a Kafka novella.
Consider, for example, EPA’s Cross-State Air Pollution Rule (CSAPR) as it pertains to Texas. In the August 2010 proposed CSAPR, the Lone Star State was found to be in compliance with the regulation’s particulate matter emissions limits. Without notice, in the July 2011 final CSAPR, EPA imposed on Texas the harshest particulate matter emissions limits of any State. The technology required by EPA’s final CSAPR requires three years to install, but EPA gave the State only 6 months to do so. Recently, the non-partisan operator of Texas’s power grid warned that the CSAPR could lead to blackouts.
Texas was left out of EPA’s deliberations for the CSAPR, but the State will have a voice before the judicial system. In late December, a federal district court in Washington, D.C. stayed implementation of the CSAPR, which was supposed to take effect on January 1, until the court decides on the merits of Texas’s allegations that EPA violated federal laws regarding proper administrative procedure.
The previous example is as blunt a violation of due process as one could imagine. Elsewhere, like in Appalachia, EPA has proven subtler. Mountaintop mining is sanctioned by the 1977 Surface Mining Control and Reclamation Act, and it essential for the competitiveness of Appalachia’s coal industry. Yet it is loathed by environmentalists, which is why EPA has had this industry in its cross-hairs since President Obama took office.
To that end, EPA alleges that West Virginia and Kentucky’s existing water quality standards are unacceptable because they insufficiently protect an insect (the mayfly) from surface coal mining operations. However, EPA already has approved these states’ Clean Water Act permitting regimes, and this complicates matters for the Agency. For environmental federalism conflicts such as this, the Clean Water Act stipulates a resolution process, one that allows states significant participation. EPA, however, didn’t want to delay its crackdown on mountaintop mining removal. Therefore, in April 2010, EPA issued new water quality standards that were officially “non-binding,” but which EPA nonetheless informed States to follow when it issues Clean Water Act permits. And if they do not, EPA has demonstrated that it will veto permits thus granted. The result is that West Virginia and Kentucky are beholden to a regulatory regime characterized by what Rep. Nick Rahall (D-West Virginia) describes as “do or dare permits”: Appalachian States must follow EPA’s “non-binding” guidance, or risk EPA’s veto.
While West Virginia and Kentucky have been shut out of EPA’s deliberations on new water quality standards, they will have their day in court. These States sued EPA, and this spring a federal district court in Washington, D.C. will decide on the merits of their allegations that EPA violated administrative procedure laws in its rush to halt mountaintop mining removal.
EPA is being similarly sneaky in its dealings with New Mexico on a visibility protection policy pursuant to the Clean Air Act. Instead of relying on “non-binding” guidance documents in order to suppress input, EPA is claiming that it has no choice but to ignore New Mexico, due to deadlines established by environmentalist special interest lawyers.
Here’s the background: Under the Regional Haze provision of the Clean Air Act, States are required to improve the view at federal National Parks and Wilderness Areas. On June 2, the New Mexico Environmental Improvement Board unanimously approved a Regional Haze plan that would meet the federal law and EPA’s own rules, at a cost of $34 million.
EPA, however, refused to even consider New Mexico’s visibility strategy. On August 5, the Agency imposed a Regional Haze plan that would cost New Mexico ratepayers $370 million–a nearly tenfold increase over those approved by New Mexico officials. EPA claimed that it did not have the time to consider the state’s plan, because it had to act before an August 22 deadline established by a consent decree with WildEarth Guardians, and environmental litigation organization. At best, EPA’s claim that it had no discretion is malarkey—it has plenty of legal latitude, and EPA’s claim to the contrary is absurd. At worst, this is an incidence of wink*wink* consent decrees, whereby EPA and environmentalist litigation outfits enact policy in the court-house, instead of having to deal with the rigors of proper administrative procedure.
In either case, the result was the same: EPA refused to consider New Mexico’s plan. The state may have been shut out by EPA, but it will be heard by a group of judges. New Mexico has a pending case against EPA in the 10th federal Circuit Court of Appeals in Denver, Colorado.
For rule-of-law proponents like me, the silver lining is EPA likely will get spanked in the courts. Even so, the country loses, because the President’s campaign talk about transparency and openness has been exposed as mumbo-jumbo.