Out-of-Control Criticism of EPA

House Republicans insist on accusing the Obama administration of suffering from some kind of regulatory spasm. But they refuse to acknowledge that the Obama Environmental Protection Agency is following federal laws and court orders -- orders issued when the Bush administration failed to abide by the law. By following the law today we will save tens of thousands of lives and avoid hundreds of thousands of illnesses.

In order to understand the basic falsehood of conservative complaints that the Obama administration Environmental Protection Agency is out-of-control, it is vital to understand first the Bush administration's history of adverse judicial rulings and failed regulatory responsibilities.

Only then can you understand the legal obligations facing EPA at the start of the Obama administration. And only then can you begin to appreciate the hypocrisy, dishonesty and pure partisanship behind most conservative criticism of EPA's actions today.

Here is just a sampling of some of the moderate rhetoric employed by House Republicans today to express their respectful disagreement with the substance of recent EPA health safeguards:

  • “[T]he scariest agency in the federal government is the EPA. . . . an agency that has lost its bearings.” (Mike Simpson (R-ID))
  • “[T]he epitome of the continued and damaging regulatory overreach of this Administration” (Harold Rogers (R-KY))
  • “EPA’s regulatory jihad” (John L. Mica (R-FL))   
  • “The out-of-control regulation authority” (Shelley Moore Capito (R-WV))

Similar statements from House or Senate Republicans were notably absent during the prior Republican administration. This despite the fact that federal courts found the Bush administration EPA to have violated federal environmental laws repeatedly and egregiously.

In April 2008, the Bush EPA released a 20-page spreadsheet of 94 EPA rules or actions under just the Clean Air Act that had been challenged in court until that point during the Bush administration.

As of August 2011, 37 of those cases have been decided by a court, and in nearly two-thirds of those cases (23) the courts overturned the Bush EPA rules. (The remaining 57 cases have either settled, been voluntarily dismissed, voluntarily remanded, or are still pending in court.) 

In 15 of those 23 adverse rulings, the courts found that the Bush EPA had contradicted or disregarded the plain language of the Clean Air Act. This is the worst way for EPA to lose a federal environmental lawsuit, because it reflects a court’s judgment that the agency defied the plain instructions of the law.

Public health and environmental groups were the prevailing parties in 18 of those 23 Clean Air Act rulings against the Bush EPA. These groups prevailed in 13 of the 15 “plain language” court decisions. EPA lost this startling number of Clean Air Act cases because the Bush administration had adopted unlawful regulations that benefited polluting industries at the expense of human health and the environment, despite unambiguous statutory directives requiring otherwise. This was truly out-of-control behavior.

These adverse court rulings occurred primarily in the Bush administration’s second term, because it took this long for unlawful, deregulatory regulations issued during the first term to wind their way through the courts. When federal courts returned these unlawful regulations to EPA for correction, the Bush administration then failed to re-promulgate these “remanded” rules before leaving office.

Sometimes this failure was for understandable reasons, as the second term was coming to an end. And sometimes the failure was rooted in the same ideological defiance that had resulted in the original court rulings against EPA. A good example of this is the April 2007 Supreme Court ruling in Massachusetts v. EPA that carbon dioxide is a pollutant under the Clean Air Act; the Bush administration ran the clock out for the last two years of its second term, refusing to respond to the Supreme Court’s remand.

When the Obama administration took office in January 2009, it inherited the legal obligation to respond to court orders in not just these 23 Clean Air Act cases, but also in numerous other losing cases under other environmental statutes that EPA administers. The current administration inherited the responsibility to fix a decade-long mess consciously created by the Bush administration and industry supporters out of a shared ideological-economic agenda to violate environmental laws and weaken public health safeguards.

It is striking how thoroughly today’s fiercest EPA critics ignore this history and its implications. Conservative politicians like the House members quoted above, pundits like the Wall Street Journal editorial board, and industry lobbyists ignore this unprecedented wave of Bush administration lawbreaking that the Obama EPA now must rectify.  

These EPA critics disregard the multiple years of delay by the Bush administration (and in some cases the Clinton administration before it) that led to missed statutory deadlines for clean air safeguards and other protections. These delays occurred before the Bush administration even got around to adopting rules that the courts then found unlawful.

These critics ignore the subsequent delays that occurred when the Bush administration failed to correct its own illegal actions before leaving office. They show no concern for the delays that have continued while the present EPA re-proposes and re-issues lawful standards. Ones that will not even take place for several more years. All of this adds up to more than a decade denying the American people health safeguards promised by Congress in the Clean Air Act.

Worse, these anti-EPA critics show no evident regard for the massive health toll to the American people -- the tens of thousands of deaths, tens of thousands of heart attacks, hundreds of thousands of asthma attacks and other diseases -- that resulted from this campaign of delay and law-breaking by the prior administration.

Where are these current critics' concern for public health, for clean air and water? Where is their concern for congressionally required standards and prescribed statutory deadlines? Where is these lawmakers' concern for the Rule of Law itself?

Where were the outraged press statements and quotes in the media during the last decade from Representatives Whitfield, Upton, and Barton, and Senators Cornyn, DeMint and Inhofe, when a genuinely "out-of-control" Bush EPA broke the law again and again and again and again and again and again?  When it repeatedly missed statutory deadlines? When the Bush EPA disregarded science and facts in pursuit of the White House's ideological agenda? (I invite readers to point me to any statements from these members of Congress condemning the Bush EPA for violating the Clean Air Act by adopting insufficiently protective health standards that were overturned in court.)

And for their part, today's industry critics of EPA not only supported the Bush administration's law-breaking, by intervening on the administration's behalf in virtually every lawsuit in which the courts found inadequate standards to have violated the Clean Air Act. Some of these industry groups actively facilitated the Bush administration's law-breaking, by supplying EPA political appointees with the bogus legal theories that the Bush appointees adopted over the objections of career EPA staff and attorneys. (It is surely the case that the expert career attorneys in EPA's Office of General Counsel had advised Bush political appointees in advance that some or many of these rules faced very high legal risks or were indefensible on precisely the grounds for which the rules were subsequently invalidated.)

No, these political, pundit-class and industry critics show concern only when EPA finally follows the law and issues long-overdue health standards to protect the American people. These members of Congress and industry lobbyists reserve their disdain and over-the-top rhetoric for instances in which EPA is responding, as it must, to court instructions to obey the law. For example, when EPA is following the unanimous recommendations [pdf] of its science advisors and a unanimous Supreme Court decision to protect the American people against dangerous smog pollution. When EPA is following a Supreme Court decision recognizing carbon pollution is pollution, and scientific consensus that this pollution is dangerous to health and the environment [pdf].

It is especially cynical that congressional conservatives are waging their most hostile assaults against three particular Clean Air Act safeguards: mercury and air toxics standards for power plants, industrial boilers and incinerators, and cement plants. The Bush administration issued illegal standards for each of these industrial sectors, the largest remaining uncontrolled sources of toxic air pollution in the U.S.

These standards already were overdue when issued, and now toxics standards for these sectors are over a decade overdue as a result of the Bush administration's lawbreaking. Yet congressional conservatives want to deny the American people the benefits of enormous mercury and toxic pollution reductions -- tens of thousands of lives saved, and have responded with fury to the Obama EPA's proposal or adoption of lawful standards.

Where is the searching legal analysis from these critics that explains why or how EPA is not following the law? Where is their explanation for why solid and consensus science is wrong? They don't bother. Those are not their concerns.

What has become of our political discourse, of basic honesty even, when these vituperative EPA critics do not so much as acknowledge this history of law-breaking that brought us to where we are today? When they do not acknowledge that EPA has a responsibility to follow court orders and federal statutes to adopt long-overdue health protections for Americans?

These critics are advancing a fundamentally dishonest story line. They would have one believe that the Obama administration walked into office and decided to undertake a regulatory jihad against industry, a campaign to end the use of coal.

That is utter nonsense. It ignores the history discussed above and the Rule of Law 101.  And it’s insulting to the intelligence of people everywhere who care more about the facts and law than political grandstanding and divisive rhetoric.

EPA’s primary jobs are to implement and enforce federal environmental laws passed by Congress. Yet it is striking how very little of the overheated criticism by congressional conservatives even tries to make the case that EPA is failing to properly carry out our nation's environmental laws.

The next time you read an anti-EPA editorial in the Wall Street Journal, or the hypercritical press statements by conservative congressional critics, try this mental exercise. Estimate what portion of the criticism is a thoughtful explanation why the criticized EPA action is inconsistent with the federal laws that EPA is bound to enforce. Then estimate what portion of the criticism is a conservative-libertarian rhetorical insult that might as well be a macro on the Right’s computers.

Once you strip away the rhetoric and the EPA insults, here is the dirty little secret behind the majority of this criticism. When you compare the criticism to the facts of what EPA is actually doing, the laws that EPA is enforcing and defending -- it is precisely because EPA is carrying out duly enacted laws that the criticism is so virulent.

And that is why House Republicans have launched unprecedented assaults to weaken as many of those environmental laws as possible. They know EPA is enforcing the law and it burns them up.

These critics resent EPA. But they really really resent America’s environmental laws.

So who is more out-of-control?

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