Government regulation impedes the free market economy and stifles the growth of business, both small and large. At least that is what business would have you believe. When I think of government regulation, I can’t help but remember my days serving on the New Jersey Grand Jury and listening to case after case of illegal dumping by “business” into our rivers and lakes and the Environmental Protection Agency regulations that were violated for the sake of profits. Rather than as a nuisance that serves only to impede the growth of business, having spent my entire career with the federal government, I recognize the need for government to regulate the excesses and abuses of capitalism to protect the public good.
It is with this understanding of the role of government to protect the public welfare through regulation, that I found the recent efforts to bring impeachment charges against the current EPA Administrator, Gina McCarthy, rather disturbing.
Granted, the Clean Water Rule, which was the basis of the impeachment effort, has recently been stayed by the Federal 6th Circuit Court of Appeals. In its ruling, the Cincinnati-based court upheld an earlier ruling by a judge in North Dakota who had ruled in August that the EPA didn’t see enough public input before finalizing the Clean Water Rule. In its ruling, the appeals court ruled that the EPA’s new guidelines for determining whether water is subject to federal control, based mostly on the water’s distance and connection to larger water bodies, is “at odds” with a key Supreme Court ruling.
Whether those decisions will hold up as the judicial process moves forward remain to be seen. However, the rush to impeachment in response to regulatory efforts by the EPA is still an issue of major significance and quite difficult to accept.
The resolution of impeachment against Administrator McCarthy was introduced by Republican Representative Paul Gosar of Arizona, a member of the House Natural Resources Committee, because, in his opinion, “she lied during testimony about the EPA’s new clean water rules”. The Congressman cited testimony by Ms. McCarthy during several Congressional hearings on the Clean Water Rule in which she stated that the EPA Rule was based on scientific data and that EPA had answered concerns over the Rule’s legal and scientific deficiencies raised by the Army Corps of Engineers. While the Congressman and other parties may disagree with
Ms. McCarthy’s conclusions, to characterize her testimony as lies based solely on that disagreement is to institute the “my way or the highway” approach to debate that is neither fair nor constructive.
The Clean Water Rule was intended to add some clarity to two Supreme Court decisions from 2001 and 2006 that created some confusion over which waters the EPA can regulate under the Clean Water Act, the federal law governing the regulation of water pollution in the United States. The confusion created by these court rulings left thousands of our streams and wetlands vulnerable to pollution.
The new rule would have given the federal government jurisdiction over tributaries that show physical features of flowing water as well as water that is within a certain proximity to rivers, lakes and tributaries. The decision by the federal appeals court served to block full enforcement of the Clean Water Act in all 50 states resulting in placing on hold the new protections of those thousands of vulnerable wetlands and waterways.
According to President Obama, “the Clean Water Rule would help make sure polluters are held accountable for their actions”. His statement when on to say, “One in three Americans now gets drinking water from streams lacking clear protection, and businesses and industries that depend on clean water face uncertainty and delay, which costs our economy every day. Too many of our waters have been left vulnerable to pollution. This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable”.
As with any controversial issue, there is always another side to the argument. The opposition is of the opinion that the rule infringes on the rights of private property owners. Whether the rule has, indeed, gone too far and the government exceeded its authority by unnecessarily overreaching by including in its regulation irrigation ditches, isolated ponds and other ‘non-navigable’ waters as waters of the United States is certainly part of the debate.
There are, certainly, avenues for such debate through court hearings and the floors of Congress to seek legislative solutions to distinguish which waterways should be included and which not. The issue with which I am still having difficulty, however, is how did we go from a disagreement about the issues to a resolution for impeachment because of that disagreement?
When President Richard Nixon established the EPA in the early seventies, the goal was to create a watchdog over the environment. That mandate still exists today. I am quite sure that there is a legitimate debate that must be conducted to determine if, indeed, the new rule may go too far. However, impeachment proceedings against a cabinet official for taking steps to implement the protections inherent in the agency’s mission establishes a very counterproductive precedent.
Administrator McCarthy is clearly committed to issuing strong environmental protection regulations which will be upheld by the courts, and the Clean Water Rules will be no exception. When EPA issues regulations, opponents will typically sue EPA to overturn the regulations (by filing a Petition to Review in an appropriate Court, often the DC Circuit). During the litigation, EPA must show that the regulations at issue are legal while the opponents try to show otherwise. With very few exceptions, EPA ultimately prevails in these challenges, usually because the Agency has amassed a strong body of evidence to support the regulations.
If the end result of this process is that our waters are better protected against pollution, then I would say that this process needs to continue. Removing the head of the agency is a tactic that seems to be a better example of overreach than anything found in the EPA rules.