There is no question that elections matter. We follow the process and accept the results even if that results in many, many battles over the direction of the country. The election of Donald Trump and the 115th Congress seems to be a watershed moment for the country in many ways, but that doesn’t mean the rule of law or the fundamental principles of our democracy have gone away. Or have they?
I am not referring to the big controversies we see every night on the news about foreign interference in the election, or questions of conflicts of interest surrounding the President and many of his appointed officials. Those public debates are important and often seem to suck all the oxygen out of the room.
I am talking about more obscure actions buried away in the federal appropriations process that would literally set aside the ability of the public to be involved in making a key public policy decision and set aside the need to justify that decision based on good science. Sound scary? Damn right.
A dangerous appropriations bill “rider”
Just before the 4th of July recess, the House of Representatives Appropriations Subcommittee on Energy and Water Development included a provision to their spending bill to allow the Administration to withdraw the Obama-era Clean Water rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” If that provision becomes law, it would allow Scott Pruitt’s Environmental Protection Agency (EPA) and the Army Corps of Engineers to ignore legal requirements that the public be informed about and have an opportunity to comment on changes to a regulation. It means the Administration would be authorized to set aside scientific analysis that was developed as the basis for the current Clean Water rule without specifically addressing any of the scientific evidence. Pretty scary for six lines unrelated to government spending tucked into a complicated spending bill.
Why would anyone want to do this? Is the Clean Water rule so very different from all other public policies that we should waive the law including the Administrative Procedures Act which has applied to all sorts of public policy for more than 60 years, as well as the requirement to base rules, whether they be implementing or changing regulations, on good science? Actually, no it isn’t. But the Clean Water rule has become a cause célèbre for many conservative politicians, a poster child for so-called “government overreach” or “bureaucratic excess.” Unfortunately, as is all too common, much of the overheated opposition to the rule is based on a false narrative.
The Clean Water Rule
The Clean Water Rule defines the scope of the Clean Water Act (CWA) by clarifying which bodies of water are considered in implementing the Act, through which Congress mandated the nation’s efforts to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In 2006, the Supreme Court weighed in with a split decision that also instructed the EPA to clarify the scope of their CWA efforts. So the Obama Administration did just that—after years of additional analysis, proposals, and hundreds of thousands of public comments. The resulting rule expands the footprint of CWA actions by about 3 percent. In other words, it requires federal agencies and state and tribal partners to consider pollution impacts on waters and wetlands connected to larger “navigable” water bodies in some additional circumstances.
So who is so opposed? Developers, because it means they may need to be more careful in ensuring their activities don’t pollute the lakes and rivers we rely upon for our drinking water supply or for recreational activities like fishing and swimming. Mr. Trump issued an Executive Order to withdraw the rule. The Pruitt EPA has proposed going back to the pre-2006 definition, which they believe is clearer, despite the Supreme Court saying it was that very approach that was causing confusion. Clearly this is a complicated and controversial public policy decision.
Now, the Appropriations Subcommittee language says, let’s cut the public out of the process and make it easier for Pruitt to listen to his friends from industry. Let’s forget about the science. Let’s ignore anyone whose opinion we don’t like or whose evidence doesn’t support our views.
No short cuts
Outraged? You bet I am! I hope you are too. I believe this administration should have to follow the law just as previous administrations have done. Want to change the rules? Fine, propose an alternative, present your factual analysis, accept public input and explain your decision. And be subject to judicial review. No short cuts. Do your job. I think this Administration needs to hear that message loud and clear at every opportunity. And this Congress should not be adding harmful poison pill riders into must-pass spending bills.