Jay Michaelson writes: Every scientist not on the corporate dole is upset about Scott Pruitt, Donald Trump’s pick to head the Environmental Protection Agency.
And the more you know about environmental law, the more you know that the Oklahoma attorney general and his minions could be way, way, way worse at the EPA than pundits and scientists have said. Yes, he’s a climate denier. Yes, he’s sued the EPA five times to prevent regulations (and lost every time). And yes, he has openly defied court orders on same-sex marriage and abortion, investigated the Humane Society for daring to back an animal welfare law, and opined that public schools should distribute religious materials to children. But he’s about to enjoy free rein to gut environmental regulations, without Congress or the courts to stop him.
That’s because environmental laws are deliberately broad, delegating massive authority to the EPA, which then has broad discretion to determine how to implement them. If you think about it, this makes sense. Congress isn’t populated by scientists but by politicians. So they set policy goals — clean air, clean water, toxin-free environments — and leave it up to the experts to determine how to meet them.
Most of the nuts and bolts of environmental law have thus been created not by Congress but by generations of EPA regulations and implementations. Clean air standards for factories, thresholds for pesticides in fuels or toxic chemicals in detergents and fuels, pollution levels for rivers — all of these, and many more, exist in regulations contained in the Code of Federal Regulations.
Usually, it’s conservatives who have complained about this. First, of course, they tend not to like anything that restricts unfettered capitalism, and environmental law certainly does that. Second, they tend not to like big government and unaccountable bureaucracy, and reams of agency-generated regulations are exactly that. And they tend to be wary of executive power in general.
Thus, for the last 40 years, corporations, industry groups, conservative think tanks, and Republican lawmakers have sued the bejeezus out of the EPA (and other agencies), challenging just about every regulation the agency puts out.
And usually, they have lost. Over several decades, the Supreme Court has tended to side more with the EPA than with its challengers. There have been exceptions — one of Justice Antonin Scalia’s last opinions required the EPA to limit mercury emissions only when it is cost-effective for corporations to do so. But in general, the court has observed that the “enabling statutes” passed by Congress deliberately cede authority to the EPA. Without congressional authority, the EPA couldn’t make up regulations and decide how to enforce them. But with it, the agency can.
Now the shoe is on the other foot. Now it’s arch-conservatives who will be controlling the EPA, with exactly the same level of authority as the environmentalists who preceded them. [Continue reading…]