AEI scholar Benjamin Zycher pens a column in The Hill today that actually outlines the responsibilities of the EPA Administrator and then explains why Scott Pruitt is “precisely the right person to clean the EPA up,” because of his background and his understanding of the right role for this government agency:
December 14, 2016
Life in the Beltway offers a range of amusements, the latest of which is the reaction of the environmental left to President-elect Donald Trump’s announced intention to nominate Oklahoma Attorney General Scott Pruitt (R) to be the administrator of the Environmental Protection Agency (EPA).
Climate denier! An enemy of the EPA! An arsonist in charge of fighting fires! An existential threat to the planet! Polluters before health! Corruption!
That last one in particular is hilarious, as it was issued by Sen. Sheldon Whitehouse (D-R.I.), a man who has argued in favor of criminalizing the climate policy debate — remember when dissent was the highest form of patriotism? — even as he has engaged in strenuous legislative efforts to shape such policies so as to transfer wealth to his state from Republican ones.
Such a hysterical response to the Pruitt nomination is deeply revealing, about both the legal and analytic frameworks underlying EPA policymaking, and about how Pruitt’s opponents view themselves, about which more below.
For now it is useful to begin with first principles: The central job of the EPA administrator is to implement and administer the environmental laws enacted by Congress, and to limit agency actions to those authorized in actual provisions of the laws promulgated by the representatives of the people and of the states. (Remember the quaint notion of the consent of the governed?) And the tools — the regulations — used to implement and administer those laws also must be consistent with those laws and the Constitution.
It is emphatically not the job of the EPA administrator to pursue policies satisfying the political preferences of this or that interest group, whether the fossil fuel industry or the environmental left or any others; balancing of such competing demands is the job of Congress.
It is not the job of the EPA administrator to “save the planet,” whatever that means, or to satisfy the supposed imperatives underlying whatever slogan happens to be the trendy one of the day.
And so the argument that Pruitt is “an opponent of the EPA” is as wrongheaded as it gets, even apart from the sloppiness inherent in that meaningless phrase. (What does it mean to “oppose” a bureaucracy?) Pruitt is an opponent of EPA overreach — EPA regulatory efforts not authorized by the law — or, less politely, efforts by the EPA leadership to advance its ideological preferences, and efforts by the EPA bureaucracy to increase its power to control the use of private property without regard to the costs of its actions or to their actual attendant environmental effects, both endeavors unconstrained by EPA’s actual legal authority.
And he is an opponent of the Beltway’s eternal campaign to erode state prerogatives — the federalism underlying every one of our environmental laws — in favor of ever-more centralized control. That is the central thrust of the numerous states’ application for a stay on implementation of the Clean Power Plan, granted by the Supreme Court last February.
It is in the context of the benefit/cost analyses applied to draft and proposed regulations that climate science, economics and other disciplines outside legal analysis are relevant for the EPA administrator. Pruitt is absolutely correct that “Scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.”
More to the point, Pruitt is very likely to put an end to the current EPA game of justifying its regulations on the basis of benefit/cost analyses that literally are bogus. An example: The EPA has published estimates of the effects of its greenhouse-gas efficiency rule for medium- and heavy trucks:
The results of the analysis, summarized in Table VII-37, demonstrate that relative to the reference case, by 2100 … global mean temperature is estimated to be reduced by 0.0026 to 0.0065 °C, and sea-level rise is projected to be reduced by approximately 0.023 to 0.057 cm.
The EPA then states that “the projected reductions in atmospheric CO2, global mean temperature, sea level rise, and ocean pH are meaningful in the context of this action.” And so we arrive at the benefit/cost conclusion, given in all seriousness:
[We] estimate that the proposed standards would result in net economic benefits exceeding $100 billion, making this a highly beneficial rule.
Can anyone believe that a temperature effect by 2100 measured in ten-thousandths of a degree, or sea-level effects measured in thousandths of a centimeter, could yield over $100 billion in net economic benefits?
How is that possible?
If you, dear reader, really want to see corruption, consider the sue-and-settle masquerade for which the EPA is famous: Delay issuing a regulation, get sued by one or another of the “environmental” groups, “negotiate” a settlement giving said groups virtually everything they want and then claim that the resulting regulation is mandated legally!
Consider the proposed Clean Water Rule (the revised “Waters of the United States” definition), a blatant power grab under which the EPA claimed jurisdiction over most streams, dry beds, ponds and other such “navigable waters” — the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of that regulation in October 2015.
Consider the vast expansion under the Clean Air Act of “federal implementation plans” imposed upon the states during the Obama administration: From a total of five during the combined presidencies of George H.W. Bush, Bill Clinton and George W. Bush, the Obama EPA has imposed no fewer than 56.
And then there is the EPA Mitigation Trust Fund, in which fines imposed by the EPA are deposited, then to be disbursed by EPA officials to its constituencies. Has anyone at EPA heard of the constitutional requirement that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law … “?
Pruitt recognizes as far too few do that the EPA bureaucracy is an interest group much too prone to illegal activity as it pursues its objectives. At a more general level, it is clear that the political left simply views the EPA as its political possession, and those like Pruitt skeptical of its incentives and actions as illegitimate.
Pruitt in particular in this mindset is — gasp! — from Oklahoma, an important oil and gas state, and thus unqualified to be the EPA administrator simply as a matter of principle.
During testimony last June before the Senate Finance Committee, I argued that the social cost of carbon “analysis” conducted by the Obama administration — led by the EPA — was “the most dishonest exercise in political arithmetic” I had ever seen produced by the federal bureaucracy. The modern EPA is a massive bureaucratic interest group out of control, effectively unconstrained by law or the constitution, a repository of environmental fanaticism utterly uninterested in the well-being of ordinary people or, for that matter, in the actual environmental effects of its edicts.
Only Congress can impose permanent reform on an agency the central goal of which is the explicit or implicit confiscation of others’ property, and the only route to that end is a requirement that Congress approve all regulations.
Until the regulatory agencies are subjected to that fundamental constraint, thus restoring the separation of powers, the new EPA administrator must impose that discipline within the bounds of the law. Scott Pruitt is precisely the right person to clean the EPA up.
Benjamin Zycher is the John G. Searle scholar at the American Enterprise Institute.