William Yeatman

On May 2, the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“USACE”) proposed new Guidance to clarify which waters of the United States are subject to regulation under the Clean Water Act (“CWA”). If implemented as is, this Guidance document would increase significantly the authority of the federal government and it also would have a major economic impact. That is, it’s a major new policy. Yet it was never approved by the Congress. So it is another Obama power grab. (My colleague Marlo Lewis has covered extensively the EPA’s global warming power grab. Another colleague, Chris Horner, wrote a book on the subject.)

Unlike President Obama’s other power grabs, which are largely unprecedented, the  history of federal jurisdiction under the CWA is characterized by the EPA and USACE seizing as much authority as they can. Therefore, the President’s Guidance document is taking a tradition of federal expansion to its extreme bounds. What follows is a primer that explains the context of President Obama’s Clean Water Act Guidance.

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Liberal partisans claim that Republicans are at “war” with science, based largely on former President George W. Bush’s supposedly anti-science disposition, but they present only half the story. A strong case can be made that the Obama administration, too, is warring with science. Consider,

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Tonight in Taylorville, Illinois, the Department of Energy will hold the first of 3 field hearings on the environmental impact of FutureGen 2.0, America’s biggest boondoggle.

If you are unacquainted with FutureGen, it was George W. Bush’s marquee energy initiative, a $1 billion public-private partnership to build a coal-fired power plant that “captured” greenhouse gas emissions and piped them underground for storage.

President Bush proposed the project in 2003, but the Congress initially was skeptical. In 2005, the House Appropriations Committee rejected Bush’s request for FutureGen funding. Members called it a “maybe” program, too risky to merit the investment.

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Oklahoma last week became the latest State to launch high profile litigation against the Environmental Protection Agency. The subject of the Sooner State’s lawsuit is the Regional Haze provision of the Clean Air Act. For a Regional Haze primer, click here. Suffice it to say, Regional Haze is an aesthetic regulation meant to improve the vistas at national parks, not a public health standard meant to protect human beings. Also, it affords States a uniquely large discretion among Clean Air Act provisions.

In late 2010, the Oklahoma Corporation Commission approved a Regional Haze implementation plan that would switch fuels from coal to natural gas at six power plants. Fuel switching is a drastic response, especially for an aesthetic regulation, but it wasn’t good enough for the EPA, which is demanding that the switch take place 10 years sooner. If not, the EPA is requiring pollution controls that would increase electricity prices in Oklahoma by 10 to 12 percent.

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Secretary of Housing and Urban Development Shaun Donovan recently took to the Huffington Post to promote subsidies for money-saving, “green” retrofits and appliances. While he never articulated why the Obama administration thinks American consumers are so stupid that they need government help in order to save money, Secretary Donovan did offer a nonsensical justification for these tax handouts. Here’s how he opened his HuffPo post,

“With gas prices topping $4 a gallon families and businesses are facing a real burden. But we can take action to ensure the American people don’t fall victim to volatile energy costs over the long term.”

There is a big problem with the Housing Secretary’s lede: Gasoline fuels cars, not houses. The fact that “gas prices [are] topping $4 a gallon” has almost nothing* to do with HUD’s wasteful green subsidies for energy efficient appliances and retrofits.

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