Baise: EPA's latest foe: Congress

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Elected lawmakers – the people voters send to Washington to actually debate and pass laws – are staging a revolt against the Environmental Protection Agency's latest attempt to expand its regulatory authority through the Clean Water Act.

More than 260 representatives and senators now oppose EPA's proposed expansion of the CWA. Sen. Pat Roberts, R-Kan., and Sen. John Barrasso, R-Wyo., have introduced a bill to block EPA from issuing the rule, which would expand EPA's authority over wetlands, creeks, possibly stock ponds and ditches.

"I want to make sure that the expansion of regulatory jurisdiction over 'Waters of the United States' is shelved for good!" says Roberts.

More than 230 representatives also have filed a letter with EPA and the U.S. Corps of Engineers requesting the agencies withdraw the new proposed definition of water rule.

More good news
Rep. Bob Goodlatte, R-Va., currently Chairman of the House Judiciary Committee and formerly Chairman of the House Agriculture Committee, along with Congressmen Frank Lucas, Collin Peterson, Bill Shuster – Chairman, House Committee on Transportation, Joe Barton, Todd Rokita, and others too numerous to name -- are challenging EPA's action in the U.S. Court of Appeals, 3rd Circuit. They filed a brief as 39 bipartisan members of Congress opposing EPA's effort to expand its jurisdiction over water.

Related: Is EPA Telling the Truth About Clean Water Act Jurisdiction?

The Congressional brief is worth reviewing. It says "Agencies should not be allowed to seize virtually limitless power by…an expansive statutory interpretation that is not expressly prohibited." (I have described these interpretations in previous columns)  The brief then engages in a technical separation-of-powers argument, which I will explain later.

The brief from Rep. Goodlatte and his colleagues is important from another aspect.  On page 4 of the brief, there is an excellent discussion describing a Virginia Senate Finance Committee report claiming EPA's new rule will cost the Commonwealth "…$13.6 billion to $15.7 billion."

The brief also claims that Maryland was forced to develop a Watershed Implementation Plan which will require "…$14.40 billion to reach the nutrient levels mandated by the [EPA] TMDL (Total Maximum Daily Loads)."

There is another study cited in the footnote which claims EPA's rule will cost Pennsylvania over $15 billion.

It is good to see a brief which actually explains in real world terms what EPA is proposing to do to agriculture.

The Goodlatte brief claims EPA will "…usurp traditional state authority over economic development and land-use management decisions, locking in source and sector-specific allocations and robbing the States of the freedom and flexibility to adapt their own plans based on new technologies, changing circumstances, or economic efficiencies."

The majority of the brief discusses the impact of a 1984 U.S. Supreme Court case where the Court cautioned "Federal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who do." The Supreme Court case is known as the Chevron decision (Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

The brief at this point engages in a lawyers' discussion as to how step one in Chevron requires courts to look whether Congress expressed a clear intent in a statute. If congressional intent is clear, the court should go no further.

Step Two of a Chevron analysis allows a court some flexibility in interpretation if Congress has not directly addressed an issue. Courts can claim, if there is ambiguity, Congress has delegated its authority on the matter to the agency.

The U.S. District Court judge in the American Farm Bureau case against EPA used the Chevron decision analysis to rule that EPA could exercise its discretion regarding TMDL issues. Rep. Goodlatte and his 38 colleagues claim the U.S. District Court judge is flat wrong and her decision. The bipartisan Congressional members want the appellate court to know that the judiciary cannot interpret the Clean Water Act when Congress has spoken clearly. The bipartisan Congressional members quote Chevron, which says "The judiciary…must  reject {EPA} administrative constructions which are contrary to clear Congressional intent."

Radical transfer of power
The Congressional brief blisters the U.S. District Court judge, claiming "The District Court's failure to engage in a proper statutory analysis…combined with its attempt to conjure up ambiguity where none exists, resulted in a radical transfer of power from Congress to the EPA…"

The definition of water that EPA has proposed has created such a backlash that the House Appropriations Committee has passed a bill, including a provision which will prohibit the Corps of Engineers from working on the water rule.

Congress has the power of the purse and it should now exercise it by cutting EPA's money off from further work on the proposed definition of what is "waters of the United States."

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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