Over at Politico, Alex Guillén has a nice story on “EPA originalism,” the alleged principle that Scott Pruitt, administrator of the Environmental Protection Agency, is using to justify massive budget cuts and regulatory rollbacks at the agency. The headline calls the principle “radical.”
Pruitt coined the term in an interview with Breitbart back in March, when he pledged to “re-focus the agency toward Congress’s original authorities.” It’s part of his much-touted “Back to Basics” approach.
The approach is being warmly received by conservative media, of course, but make no mistake: “EPA originalism” is nonsense.
In spirit, it is diametrically opposed to the intent of the lawmakers who passed the laws that EPA now enforces. They meant those laws, and the agency, to grow and evolve.
In practice, it means rolling back rules that took years of work to develop and reducing the agency’s capacity for science, research, and enforcement. By doing this, Pruitt is not returning EPA to anything. He is rejecting its mandate, creating something radically new and diminished.
He will find himself restricted in how much of this devolution he can accomplish. EPA rules are quite resilient, as is the agency’s budget. But whatever his ultimate effect, no one should pretend that he’s acting in the spirit of EPA’s founders. The Politico headline calls the idea “radical,” but really it’s just wrong.
America’s foundational environmental laws were designed to evolve
To understand the key dynamic at work in US environmental politics, it’s worth revisiting a 2010 journal article called “Beyond Gridlock: Green Drift in American Environmental Policymaking,” by political scientists Christopher McGrory Klyza and David Sousa.
Between 1964 and 1980, the “Golden Age” of environmental policymaking, 22 major federal environmental bills were passed and signed into law, including the Clean Air Act, the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, and many more.
Since then, aside from the 1990 Clean Air Act amendments, there has been almost total legislative gridlock. Rising polarization has rendered Congress impotent on major environmental challenges.
And yet, US environmental law and regulation have stumbled forward over the years, rarely backward. Why? Answering that fully is complicated, but at root, as Klyza and Sousa write, it is because those visionary laws passed in the ’60s and ’70s were designed to evolve.
They were written broadly, instructing executive branch agencies to pass, in effect, whatever regulations were necessary to protect public health. They mandated regular scientific reviews, to keep agencies appraised of the latest threats. Most of them instructed agencies to pass regulations based on public health criteria, not on lowest-cost economic grounds.
The Clean Air Act has been updated as the science has improved
Take the Clean Air Act. In Section 108, it specifies that air quality standards are meant to protect the public from “air pollution which may reasonably be anticipated to endanger public health or welfare.” That is quite vague, and deliberately so. It was understood by lawmakers that science evolves and so regulations should evolve too, updating alongside our best scientific understanding.
That is the purpose of the regular scientific reviews mandated by the law. And it is how the Obama administration was able to able to issue the Clean Power Plant rule, aimed at reducing carbon dioxide emissions from existing power plants 32 percent below 2005 levels.
When Pruitt “maintains that the agency’s Obama-era leaders vastly overstepped EPA’s authority by issuing regulations such as its greenhouse gas limits for power plants,” as Guillén writes, he is simply incorrect as a matter of law.
The legal question is whether greenhouse gases qualify as a “pollutant” under the Clean Air Act. The Supreme Court decided that question, in 2007’s Mass. v. EPA. It said, yes: If EPA determines that they threaten public health, it can regulate greenhouse gases. In its 2009 endangerment finding, EPA determined that, yes, greenhouse gases threaten public health.
So EPA is now bound by law to regulate greenhouse gases. Unless Pruitt can overturn the SCOTUS decision (he can’t — the law isn’t on his side) or the endangerment finding (he can’t — the science isn’t on his side), he must regulate.
If reporters ever call him on this very basic nonsense, Pruitt will, by necessity, fall back on more specific legal arguments about EPA’s use of Clean Air Act Section 111(d), or its extension of regulations “beyond the fenceline” of individual power plants.
These questions were going to be resolved by a case on the Clean Power Plan pending before the DC Circuit Court, and climate hawks were confident they were going to win. But the Trump administration recently froze those lawsuits. Its intent, regardless of the legal merits, is to weaken or roll back as many regulations on fossil fuel companies as possible, so fossil fuel companies don’t have much reason to sue any more.
Anyway, legally speaking, there’s no evidence for the view that Obama’s EPA overstepped its authority in regulating carbon with the Clean Power Plan. Pruitt has deliberately prevented the legal questions from being resolved. He’s just stipulating the answers now.
Conservatives loathe US environmental law, but they can’t wish it away
Beyond the specifics of the Clean Air Act, the broader point is simply that America’s foundational environmental laws were designed to result in the regular strengthening of environmental regulations. That was Congress’s intent in passing them, as reflected in statutory language.
That’s why, as Klyza and Sousa write, they have tended to act as a ratchet. There are long periods of stasis, when Republicans hedge or delay on the laws’ inexorably mounting obligations, but basically, when Democrats take the presidency, they have the tools they need to tighten environmental regulations.
And once environmental regulations are passed, they are extremely difficult to unwind, as history demonstrates and Pruitt is about to find out.
For one thing, environmental regulations almost always end up producing far more in health and social benefits than they cost in industry compliance; that’s one reason they are so consistently popular. For another, EPA staff does good science, and to roll back a regulation, the agency’s political leaders have to justify it before the courts by pointing to flaws in the science. They have almost never succeeded in that.
In short, this is an area of law where the massive bias toward the status quo built into US politics helps progressives. Left to themselves, these laws evolve. Conservatives have to take active (and unpopular) measures to stop it from happening.
Conservatives hate that. They’ve been railing against it for years. Many of the structural features of US politics help conservatives, but this one helps their opponents. It’s one reason environmental policy is polarized even ahead of the rest of US politics.
Still. Conservatives can hate the character of US environmental law, but they can’t wish it away. Only Congress can change those laws, and GOP congresses have not, of late, been marked by competence and accomplishment.
Until those laws change, they remain what they were designed to be: living, evolving systems of public protection, based on rigorous science, protected, at least somewhat, from political winds. If anything, “EPA originalism” would mean returning to the original, vaulting ambition that marked the laws’ passage — the principle that in America, clean water, air, and land are every citizen’s birthright.
Over the years, the GOP has rejected that once-shared principle. It now fights, in every case, on behalf of the short-term interests of polluters. Nowhere is that more evident than in Pruitt’s naked devotion to the fossil fuel industry.
Nothing can stop Pruitt from rejecting the intent and ambition of the elected representatives who passed America’s environmental laws. But he shouldn’t take EPA’s name in vain while doing it. We don’t have to pretend this brain-dead twitch of a slogan is “radical.” It’s just dumb, and wrong, and ugly.