Will the Supreme Court Nip the EPA Next?

Too many people judge Supreme Court actions on whether they agree with the outcome, without reference to how the Court said it reached that outcome. Many who cheered when the Court kept the Trump administration from asking citizenship questions on the census cannot be happy with the recent decision respecting vaccination mandates and may be even more unhappy when the Court resolves three challenges to the Environmental Protection Agency’s (EPA) regulations on power plant energy production.

This Supreme Court appears to be chipping away at the behemoth Administrative State and the EPA’s regulations on greenhouse gas regulations may be next on the chopping block. That’s the view of Jonathan Adler at Volokh Conspiracy and I think he has a valid claim.

Not so fast, OSHA.

Adler’s thesis begins with the Occupational Health and Safety Administration’s emergency regulation which mandated that all private employers with one hundred employees  require its employees to be vaccinated against Covid or undergo repeated weekly testing for the virus. The Court ruled that this exceeded the agency’s grant by Congress to protect the health of workers in their place of employment  The Court made clear that without a clear congressional mandate the agency was never given congressional authority to make such  “ a significant encroachment into the lives—and health—of a vast number of employees.”

 There is a hint in Chief Justice Roberts and several other members of the court that they believed that the regulation was a pretextual effort to increase Covid vaccinations, and not a workplace safety move. And the scope of OSHA’s mandate is, after all, simply and exclusively workplace safety. The notion that regulations might be held invalid because they were pretextual even if the agency could provide a reasonable justification for them, was signaled  in an earlier case involving the right of the Trump administration to reinstate a citizenship question in the census:

 [T]he Chief Justice's decision to prop open the door to consider pretext invites litigants challenging agency actions to search for evidence -- whether or not in the official record -- to show that they, too, have been the subject of an unlawfully pretextual agency action. There is nothing in the Chief Justice's opinion that suggests this analysis is to be confined to those contexts in which the distribution of political power or other particularly weighty concerns are at stake, and there is much language in his opinion... that could find a ready home in legal challenges against HHS, the Education Department, or the EPA.

This is a departure from the usual view on judicial review . Normally, if the regulators can provide a reasonable justification and the regulation aligns with the statutory mandate, courts will not interfere. It also justifies court consideration of matters outside the text of the regulations itself. In sum, it presaged the OSHA case where the White House chief of staff Ron Klain retweeted that this regulation was a “work around” to increase the number of people vaccinated when there was no authority for an executive order compelling it.

Other evidence of the pretextual nature of the  vaccine mandate regulations is found in its own language--the deciding factor for coverage was the number of employees and not the workplace conditions. So, for example if all those one hundred employees were working from home they were covered by the mandate, but if a ninety nine- employee shop involved people working close together in poorly ventilated settings they were not. Seems fairly obviously irrational, doesn’t it?

Block that pretext!

The left may have cheered the census case outcome -- the Supreme Court remanded the issue back to the lower courts and in so doing delayed inclusion of the question in the census-- but it may come back to bite them as coming up on the docket is a case involving the EPA and its authority to regulate greenhouse gases.

This case comes up on several writs of certiorari to the court, challenging a decision by the U.S. Court of Appeals for the District of Columbia which held that the Environmental Protection Agency (EPA) had authority under the Clean Air Act  to regulate greenhouse gas emissions from power plants. Then President Trump rescinded the Obama Administrations Clean Power Plan (CPP) and adopted an Affordable Clean Energy (ACE) in its place. The D.C. court concluded that the Trump Administration's recision was arbitrary and capricious, though it did not compel a reinstatement of the CPP, and the EPA still has not come up with new regulations. In the face of the Supreme Court trend to clip administrative agency wings the EPA is in limbo presently. It has no idea how far the new regulations may sweep.

The three cases upon which the Court granted certiorari broadly question EPA’s authority -- does the Clean Air Act have any limits? What are these administrative boundaries? For example, can the agency ignore cost of compliance, the power of states to set performance standards, reshape the nation’s electricity grid? These, among others, are the questions raised by the three petitioners.

However the Court decides, it is likely to be the most important environmental (and energy) decision cases in the court’s history. And it seems to follow on a partisan attack on the revival of an apparently unrelated citizenship question in the census. On such things does the course of history turn.

The Great Ethanol Boondoggle

During the Jimmy Carter administration when gas shortages and long lines at the pumps were high on voters long list of dissatisfactions, a bright idea took hold: mandate ethanol, the creation of gasoline from crops, most especially food stock like corn –about 40 percent of which is  now used to produce it.  It was convenient for politicians on the left. It was renewable. It was domestic and, not least of all, it was a political plus for those who supported it because Iowa was the first primary election in the country and it is corn country.

For decades afterward, even when there was no shortage of available fuel from conventional sources, Congress adored ethanol. Of course, there have always been problems created by the ethanol mandate. It raises the price of food—corn and meat in particular. It can damage car engines and fuel pumps. Two years ago, the Atlantic decried the lost promise of ethanol, once the darling of the Democrats:

 In the United States, the cultivation of corn for ethanol now requires a staggering 38 million acres of land—an area larger than the state of Illinois. By comparison, the total area of cropland used to produce grains and vegetables that humans eat is only about twice that acreage. In other words, the U.S. devotes enough land to corn-ethanol production to feed 150 million people.

The 2007 Energy Independence and Security Act requires ever-increasing amounts of ethanol in gasoline sold in the United States. Small refineries are theoretically allowed to seek EPA exemptions from the mandates when the high compliance costs threaten their operations. Sixty-five small refineries have sought exemptions -- but the EPA has denied every one of them. If they shut down because operations are no longer profitable, East Coast fuel supplies in particular will be hard hit and prices more volatile.

It appears that while hawking renewables at the same time it substantially reduces conventional fossil fuel production, the Biden Administration has decided to increase the blend of ethanol required in gasoline and, in the process, raising gasoline prices even higher. A week ago, the EPA scaled back the corn-ethanol mandate for 2020 due to the widespread lockdowns and now proposes to raise the mandates for cellulosic ethanol, biodiesel, and advanced biofuels. Renewable diesel costs between fifty cents and one dollar more than petroleum diesel, an increase passed on to consumers.

Who benefits from the shift? It's not vehicle owners, because as fuel economy has improved, the quotas have become "increasingly unattainable" and the damage to older cars greater. Refiners are forced to buy credits from EPA to comply with the quotas or turn to more expensive biofuels, which are often imported.

Who's to blame? Not Iowa corn  farmers. It’s the oil giants and hedge funds. And the Iowa corn farmers who banked on their state’s early presidential caucuses to keep them in the ethanol drivers’ seat? Well, the writing  on the wall appeared in 2016 when Ted Cruz, who opposed the ethanol subsidies and mandates, won the Republican primary there.  And their doom was sealed when in 2020 Donald Trump won the presidential race in their home state.

Maybe the only way to kill this program is for oil-producing states to run their primaries before any state that produces the now-favored mandated substitutes for corn-based ethanol.

The Real Energy Crisis

Instead of handing out treats for Halloween on October 31, the Biden Administration and the green industrial complex supporting it are lining up the tricks to commit America to a green future that looks bleak, and promises more hardship here, particularly for seniors and the poor, just as in Europe.

Even the climate-cheerleading The Economist nods to reality.

The switch from coal to renewable energy has left Europe, and especially Britain, vulnerable to a natural-gas supply panic that at one point this week had sent spot prices up by over 60 percent. …[M]ake no mistake, the deeper forces behind the shortage economy are not going away and politicians could easily end up with dangerously wrong-headed policies. … [G]overnments… may have to meet shortages by relaxing emissions targets and lurching back to dirtier sources of energy. Governments will therefore have to plan carefully to cope with the higher energy costs and slower growth that will result from eliminating emissions. Pretending that decarbonisation will result in a miraculous economic boom is bound to lead to disappointment.

As a direct result of bad policy choices, this is the real “climate crisis.” We can only hope the Economist is correct about the possible political “backlash.” The question is whether that comes too late.

To the rescue?

With dire warning signs out of Europe over a feared cold winter amid record-low fossil fuel supplies due to green mandates, and a green energy infrastructure unable to meet demand, green-industrial complex voices are already pre-butting assignment of responsibility saying, whatever you do, blame “anything but the greens.”

Of course, if you’ve ever had, or even been, teenagers, you know that a chorus of voices piping up in early October that “December’s not my fault” is a good sign that December is their fault. During California’s 2020 rolling blackouts, Governor Gavin Newsome “pointed to California’s shift to renewable resources as part of the reason for the supply shortage. ‘Shutting down polluting gas power plants as created gaps in the state’s energy supply,’ he said.”  And while he is apparently still committed to a “green” future, Newsome said, “we cannot sacrifice reliability.” Too late.

Anyone truly surprised by the perils created by politicians has not been paying attention. Enron executives predicted this in 1999, as they organized and funded what has become the climate industry. One internal email noted, “more than any other U.S. corporation [Enron] has helped legitimize the case of apocalyptic climate change and today is carrying the Kyoto flag more than any other U.S. corporation.….” Another, however, acknowledged that this politicization of energy markets posed great systemic risks such as what we are seeing unfold today:

Maybe Enron can dodge the macro problem and have our micro benefits, but then again I have to think that a politicized international energy market for any reason will create as much or more downside than upside.

Although Enron is long gone, the harms visited on the U.S. and global economies by its agenda continue. And with climate activists embedded throughout the government in key energy and climate roles, there is even less regard at present for the need for public support or political legitimacy.

The Washington Post reports,

Environmental Protection Agency Administrator Michael Regan says he’s willing to wield broad regulatory power to enact President Biden’s climate agenda if Congress fails to pass meaningful climate legislation. Regan says his agency will issue a robust greenhouse gas rule for power plants, a stringent methane rule for oil and gas infrastructure, and sweeping emissions standards for new cars, regardless of Congress's actions.

Similarly, White House aide Gina McCarthy repeated the line from the Obama-Biden EPA when it comes to imposing the climate agenda: “The Biden administration will use its ‘regulatory authority’ to act on climate change if it can’t get Congress to” pass its desired legislative agenda.

Don't cross the Queens...

Massachusetts Attorney General Maura Healey even promised a Michael Bloomberg group that, if it gave her privately funded attorneys to be embedded in her office, she would use them to enforce “the long-term commitments set forth… in the Paris Agreement.” Those were supposedly voluntary, we were told, in order to keep the U.S. Senate from voting on the pact.

Those promises are about to be made more painful. On October 29, keep an eye on the D.C. Circuit Court of Appeals, where the Biden Environmental Protection Agency is expected to roll over in a sue-and-settle lawsuit, State of New York et al. v. EPA. In a filing due that day, EPA is likely to announce plans to issue new ozone National Air Ambient Quality Standards (NAAQS), seemingly obscure but in fact “Biden’s back door climate plan,” as the main vehicle to impose this “climate” agenda.

History suggests this also will re-run an Obama Year 1 move to obtain praise at and energize the Rome G20 meeting the next day, and climate pact talks in Glasgow beginning two days later. At both, Biden is expected to deepen President Obama’s GHG emission-reduction promises based on the Clean Power Plan, tossed out by the Supreme Court in West Virginia v. EPA.

None of these moves has popular support or political legitimacy. It will take until the end of Biden’s term to conclude their legality. History also shows that is enough time to destroy communities as industry redirects investment decisions. Already we see, with the unfolding energy crisis, how these plans increase costs, and reduce energy security and reliability. That’s the real “climate crisis.”

Every Wildflower is Sacred, Even 'Buckwheat'

It’s my view that the Environmental Protection Act goes too far and allows every vital major energy-producing and -extraction project to be bollixed up by those who hate humanity. Those who wish to save every rare weed, snail darter and smelt attribute sacredness and need to "preserve" everything except humans.

Lithium is critical to electric car batteries because despite its light weight it can store lots of energy and can be recharged. In Nevada, which is rich in underground lithium resources -- resources urgently needed for the growth of mandated electric vehicles and renewables -- we see what Forbes calls the “environmentalist/anti-development movement” moving to halt lithium production in the U.S., an extractive process , not very different from those used in coal mining , oil drilling and fracking.

Lithium: better than "buckwheat."

At this time, lithium is mined mostly in Australia, Chile, China and Argentina. If we mine more here we could reduce the cost of electric vehicles. If we don’t, we’ll be importing it, mostly from China. President Biden proposes offering a rebate for consumers who trade in gas-powered vehicles for electric cars, without, as I’ve noted, doing one thing to increase electric power generation.

Now the Administration has gone even further in initiating action which could halt construction of a lithium mine in Nevada. This mine would create 700-900  jobs, and is expected to produce enough lithium to power “hundreds of thousands of electric vehicles annually.” Under the Endangered Species Act, the U.S. Fish and Wildlife Service has just determined that it will list a 6-inch tall wildflower -- Tiehm’s buckwheat -- as a threatened or endangered species, determining that a company’s proposal to salvage the remaining plants by transplanting them elsewhere was an uncertain move, because “current research indicates that Tiehm’s buckwheat is a soil specialist, that adjacent unoccupied sites are not suitable for all early life-history stages, and there has been no testing or multiyear  monitoring on the feasibility of successfully transplanting the species.”  

 The government has until September 30 to issue a formal rule on protecting this wildflower after which there will be a 60-day public comment period. There is only one other large-scale lithium mine in the U.S., also in Nevada,  and it  has been operable for about six decades. Another one being planned in Nevada at the largest known lithium deposit in the U.S. also is facing legal challenges.

The  challenge in this case is by a non-profit outfit called the Center for Biological Diversity, which first came to public attention when it fought to limit logging in old growth timberland to preserve the Mexican spotted owl. If memory serves, it was established subsequently that the spotted owl  was better protected by removing its competitors, barred owls, from areas where the spotted owl was in decline.

Since one of the greatest dangers to this wildflower is the rodents that eat it, maybe they should eradicate the mice to save it.

 

Environmental Activists Resume 'Sue-and-Settle'

As President Biden readies his breathtakingly irresponsible pledge to double the United States’ commitments  under the doomed Paris climate treaty, nineteen public interest groups have sent joint letters to Republican House and Senate leadership calling for an investigation of, and and an all-out effort to block Biden’s end-run around Congress to impose the Green New Deal through a regulatory backdoor.

The move, uncovered by chance in open records requests, contains the worst elements of Washington: bureaucrats cycling in and out of office, collusion with ideological activists and, when democracy slams the front door shut, find a backdoor “sue-and-settle” resolution.

This plan to exclude the people's voice and enable governmental overreach was developed over months between progressive state attorneys general and former career U.S. Environmental Protection Agency  attorneys and other staff now turned environmental activists.

They never stop, they never sleep, they never quit.

Their proposed method to circumvent Congress gets into the weeds -- a secondary National Ambient Air Quality Standard (NAAQS) to reduce greenhouse gas emissions -- but would fundamentally transform the Clean Air Act into an unrecognizable and never intended framework for economy-wide decarbonization.

This has never been authorized by any Congress nor approved by any court. In fact, this plan came about precisely because of past legislative and judicial rejections. It was first revealed in public records obtained by Energy Policy Advocates from state AGs. Emails reflect months of scheming, which scheme quietly became public in a lawsuit filed in the D.C. Circuit federal court the day before Biden’s inauguration, State of New York et al. v. Environmental Protection Agency, et al.

On Energy Policy Advocates’ behalf, I filed a proposed amicus curiae brief in that case, informing the Court of just what is transpiring here. A Wall Street Journal editorial, “Biden’s ‘Backdoor’ Climate Plan,” captured the revelations:

To sum up, Democratic AGs, green groups and a top Biden environmental regulator are colluding on a plan to impose the Green New Deal on states through a back regulatory door because they know they can’t pass it through the front in Congress.

This is because the plan is at best a futile and costly gesture -- Alexandria Ocasio-Cortez's chief of staff was overheard confessing the Green New Deal isn't even about climate. The U.S. could shut down tomorrow, and it would never control global concentrations of carbon dioxide. The EPA likely cannot even impact them. It can only impoverish its citizens and benefit countries such as India and China all for no impact on the climate --  which is supposedly the objective.

When rumors floated early in the Obama-Biden administration that a similar greenhouse gas or “climate” NAAQS was in the offing, Obama’s first EPA Administrator, Lisa Jackson, publicly characterized the idea as not “advisable.” One prominent environmentalist group attorney, also seeking to quell controversy over the prospect early in the Obama administration, said, “hell will freeze over before there's a NAAQS for CO2.”

Ms. Jackson merely recognized the considerable political risk. Which explains such complicated legal maneuvering to sneak an economic transformation into the regulatory shadows.

The agenda has not grown in popularity since recent attempts to impose it through the front door, in the doomed 2009 “cap and trade” legislation which members of Congress made Nancy Pelosi promise in 2019 not to revive. The same fear was shown in 2020 votes on the “Green New Deal” legislation, in which every Senate sponsor cravenly voted “present."

The regulators in the shadows...

While the lesson of these debacles is that the American people know what they do and do not want, and what they did and did not vote for, Democrats instead concluded they needed to find a back door for their agenda.

The coalition letter asks Republican leadership to exercise their legislative and oversight authorities to examine and, if possible, impede what has emerged as a back-door campaign to an unpopular, unwise energy policy. It notes:

Ultimately, this plan seeks to weaken our nation’s ability to extract, transport and use our wealth of affordable, reliable energy resources—resources which are a vital driver of human wellbeing. From electricity for our factories and hospitals to locomotion for the cars, trucks, trains, and ships that move people and goods about the planet, affordable, reliable energy enables the modern standards of wealth and health we enjoy.

President Biden ran on, yet often downplayed, a promise of imposing these same policies. He calls climate an “existential crisis.” Biden, like Congress, surely welcomes the January 19 lawsuit by political allies, sparing him the political exposure of actually proposing the regulatory assault. His new EPA chief just spent two years plotting suing this agenda into existence and now he is in position to roll over and concede it into place.

While politically clever, this betrayal would be economically disastrous. So it had to be kept secret as long as possible. Once Energy Policy Advocates’ public record requests homed in on this scheme, AG offices broadly forced the group to go to court before releasing any further details.

A dramatic reset of the American economy merits scrutiny and, importantly, public consent. It is antithetical to the American system of government to allow parties to collude behind the scenes to transform our economy. This fleeting moment of radical government cannot be allowed to condemn Americans to years of energy rationing and brakes on economic recovery that will only be reversed after needless suffering.

A Second, Unaccountable EPA for Biden?

Liberals continue to fret about how the Biden Administration will enact Joe's climate agenda without complete Democratic control of Congress. For the latest example of this genre, here's Derek Brower writing in the Financial Times:

More than 81 million Americans and a majority of electors backed a candidate who said he hoped to “transition from the oil industry” and put clean energy at the centre of a US$2 trillion green plan to decarbonize American electricity in 15 years and create a net-zero-emissions economy by 2050....

Yet as the dust settles on Biden’s victory, the political realities are starting to set in too. Despite retaining a majority, Democrats lost seats in the House of Representatives and at best can hope to split the Senate 50:50 by winning two run-off elections in Georgia in January. For all the enthusiasm of his supporters — and despite the mandate from the popular vote — the full gamut of Biden’s transformative US$2 trillion energy plan has little chance of progressing through such a divided chamber.

Brower goes on to lament "an increasingly conservative judiciary will be an obstacle to federal bodies acting expansively" (translation: Trump-appointed judges will make it difficult for Biden's White House to work around the Constitution), and consequently it will likely take a few years to fully undo Trump's efforts at rolling back onerous regulations on the resource sector.

He is hopeful, however, that a few key administrative actions will have big impact nationwide. These include toughening up fuel economy standards and granting California a new Clean Air Act waiver (Trump revoked the previous one) which will allow the state to impose significantly stricter emissions standards than the federal government, an act which (because of the Golden State's size) could have a ripple effect on the entire auto industry.

Brower is also encouraged by Biden’s announced appointments of "several heavyweights to key energy positions" which he feels denote a "bold climate agenda," the lack of Congressional support notwithstanding. He mentions a few of these appointments, including new international climate envoy John Kerry and domestic "climate czar" Gina McCarthy. These names are, in fact, pretty striking, especially considering the roles they've accepted. Kerry, former Democratic presidential nominee and former secretary of state, and McCarthy, a former EPA chief, have both been cabinet members and now they're content with newly created positions which sound pretty meaningless. What gives?

The Daily Caller's Larry Behrens thinks he's figured it out. His contention is that Biden's object is to create what is effectively a second EPA within the White House, one whose officials aren't confirmed by the Senate and whose actions won't require congressional oversight.

Kerry and McCarthy are perfect choices for that type of role. They're big names who will get the liberal media excited, but who might be shy of Senate confirmation hearings. According to Behrens, McCarthy would be especially reluctant to answer questions about her most recent job as head of the Natural Resources Defense Council, "an environmental organization that faced scrutiny for their relationship to Chinese entities." Of course, as Behrens points out, this is an appropriate background for her new job, which is to undermine America's resource industry while pushing solar panels that are manufactured in China.

Framed that way -- a president creating powerful executive branch positions for people who are unlikely to get through a senate confirmation to enact a policy agenda that he didn't campaign on for the benefit of a foreign power -- this all is a perfect encapsulation of modern American governance.

At Last, an Upside to the Covid-19 Panic

It takes the Associated Press five trained-poodle bylines to breathlessly report this breaking news:

Thousands of oil and gas operations, government facilities and other sites won permission to stop monitoring for hazardous emissions or otherwise bypass rules intended to protect health and the environment because of the coronavirus outbreak, The Associated Press has found.

The result: approval for less environmental monitoring at some Texas refineries and at an army depot dismantling warheads armed with nerve gas in Kentucky, manure piling up and the mass disposal of livestock carcasses at farms in Iowa and Minnesota, and other risks to communities as governments eased enforcement over smokestacks, medical waste shipments, sewage plants, oilfields and chemical plants.

The Trump administration paved the way for the reduced monitoring on March 26 after being pressured by the oil and gas industry, which said lockdowns and social distancing during the pandemic made it difficult to comply with anti-pollution rules. States are responsible for much of the oversight of federal environmental laws, and many followed with leniency policies of their own.

The media, led by Pravda (the New York Times), Izvestia (the Washington Post) and the news agency Tass (the AP), are heavily invested in the myth of the rampaging Black Death of Covid, seeing it as a club with which to beat the opposition into submission on its preferred policies, including the phantom menace of "global warming" and the destruction of the fossil-fuel industry. So naturally, they're alarmed.

AP’s two-month review found that waivers were granted in more than 3,000 cases, representing the overwhelming majority of requests citing the outbreak. Hundreds of requests were approved for oil and gas companies. Almost all those requesting waivers told regulators they did so to minimize risks for workers and the public during a pandemic — although a handful reported they were trying to cut costs.

Here we go back to the bad old days of polluted rivers that catch on fire, three-headed fish, and smog over Los Angeles, right? Not so fast:

The Environmental Protection Agency says the waivers do not authorize recipients to exceed pollution limits. Regulators will continue pursuing those who “did not act responsibly under the circumstances,” EPA spokesman James Hewitt said in an email.

Bah, humbug! barks the AP's five-headed dog:

But environmentalists and public health experts say it may be impossible to fully determine the impact of the country’s first extended, national environmental enforcement clemency because monitoring oversight was relaxed. “The harm from this policy is already done,” said Cynthia Giles, EPA’s former assistant administrator under the Obama administration.

EPA has said it will end the COVID enforcement clemency this month.

But that's not good enough --  even though the horses have left the barn and the damage is already done, there follows a couple dozen paragraphs exposing the environmental horrors of the temporary waivers. It's propaganda masquerading as reportage. In other words, "journalism" today.

Never Clean Enough for Government Work

Six former EPA Administrators have published a letter which offers some thinly veiled criticism of the current administration’s environmental policies and proposed rethinking the Agency’s mission moving forward. What might be the key to sound environmental protection in the future? More money for the EPA. Surprise, surprise.

Here's their letter:

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I have been involved with environmental regulatory activity since 1985. What follows is a open letter reply to ex-admins letter. It’s penned by a paid-my-own-way through college chemist son of a south-side Chicago steelworker. I must add that I’m quite certain I have been on more factory floors across this country over the last thirty-five years than these six ex-EPA officials combined.

Dear Messrs Thomas and Reilly and Madams Browner, Whitman, Jackson and McCarthy:

Thanks for sharing your thoughts on the future of the United States EPA and of environmental protection in general. I trust your lives as ex-EPA administrators have been fulfilling. It certainly appears that they have been profitable. You have variously parlayed your EPA credentials into powerful executive positions, seats on the boards of prominent public and private organizations and many advisory roles.

That’s not a criticism. You have only done what countless of other cabinet officials have done upon leaving government service. As one who continues to believe in the virtues of capitalism, I’m glad to see that it works for you too. However, one may fairly observe the common-thread that ties together your post-government employment: more EPA regulation directly benefits you and the organizations with which you are associated. More EPA regulation makes your roles more important and one’s financial compensation is usually a function of one’s importance.

You all claim to be very committed to unbiased, transparent scientific study. Yet, in your letter you quote precisely two statistics, both of which are virtually meaningless. The first is that EPA spending today is approximately half of what it was in 1980 during Reagan’s first term. The second is to cite an Office of Management and Budget study claiming that environmental regulation is so incredibly profitable it’s a wonder that private investors haven’t started up their own environmental protection agencies.

There are other statistics available you know. Surely you ran across them during your tenures. For instance, you might have cited EPA statistics that show how much air quality has improved over the last forty years; statistics that demonstrably prove how much better air quality has been during President Trump’s first term than during President Obama’s first term; statistics that prove that a higher percentage of Americans have access to high quality drinking water than most other countries on earth; statistics that document how modern waste management and landfill designs have done an incredible job in protecting ground water. The list goes on and on and on, in any environmental media you can name. Air, water and soil; we are as clean a nation as we have ever been in the industrial age and all of you know it.

But knowing it and admitting it are different things, aren’t they? Thus you give us this absurd, unsupported – and unsupportable – statement:

Fifty years ago, pollution was visible and unrelenting throughout our country. Today, less visible but equally dangerous environmental hazards threaten communities in ways that differ place to place, person to person.

While I can understand some staffer coming up with such drivel, congratulating themselves on their ability to coin a clever phrase, I cannot understand any responsible person in a position to influence public-policy affixing their signature to a document that includes it.

What exactly are these “equally dangerous environmental hazards” that have somehow slipped under the radar? Pretty sure that somebody in the media would be interested in that story. What hidden hazards today are as dangerous as rivers so polluted they actually caught fire, or a Great Lake that was declared “dead”? What toxic exposure incident this century comes anywhere close to the Love Canal disaster?

The Mistake by the Lake, 1969

Most of you are old enough to remember that prior to 1970 most industrial sources of air pollution were uncontrolled, spewing huge black plumes of soot into the sky; that the lack of tailpipe emissions standards filled crowded freeways with a stinking fog; to visualize that clearly-visible orange haze of urban ozone that you saw flying above major cities back then. Point out the most socio-economically disadvantaged neighborhood you can and there is no way that its residents are dealing with anything close to the same sort of risks and environmental damage that we were experiencing fifty years ago.

You have also apparently collectively forgotten the simple fact that most day to day enforcement and control activity occurs at the state level, not at the federal level. The EPA is primarily there to ensure that the states are doing their jobs in accordance with applicable statutes and regulations. The states are in the trenches, not the feds. Between the states doing most of the heavy lifting and corporate America revising it’s seventies-era “I don’t care” to today’s “if we don’t care, we’re screwed” attitude toward the environment today, there is much less for the EPA to do in the far cleaner nation we are blessed with in 2020.

The EPA isn’t being funded at 1980 levels because it doesn’t have 1980 levels of problems to deal with and most of what remains is managed by the states. Simply put, EPA is a victim of our mutual success in making huge, meaningful environmental progress over the last fifty years. While there will and always should be a role for EPA in maintaining environmental stewardship, creating make-work programs to artificially inflate that role should never be part of the Agency’s mission.

With sincere congratulations and condolences on your success,

Rich

A final note: the mainstream media has made a big deal over the fact that the letter was signed by three administrators who served under Republican administrations, and three who served under Democrats. This is an artificial, immaterial distinction. Prior to President Trump, every EPA administrator under Republican presidents was virtually indistinguishable from EPA administrators under Democrat presidents. Nixon, Reagan and both Bushes treated environmental protection as a cheap, “give in” issue. All willingly advanced all but the most extreme parts of the environmentalist agenda and all hired EPA administrators who would do so. The belief seemed to be that if they “gave in” they would get credit for advancing a progressive cause, at relatively little political cost.

This never worked. The three Republican signatories to the letter, Thomas, Reilly and Whitman, were beat up as regularly by the opposition and its media allies as the three Democrats, Browner, Jackson and McCarthy were celebrated. No one would describe either Thomas or Whitman as conservative, and Reilly – who supported Hillary in the last election – is clearly a RINO these days. This letter is not about representatives of two parties coming together to chart a new course for the EPA, it’s yet another attempt to protect the swamp from further drainage.