The Environmental Protection Agency wants to reinterpret the Clean Water Act; according to Congressman Bill Shuster, its new interpretation will “open the door for the federal government to regulate just about any place where water collects.” Till now, the EPA has been able to impose itself only on “navigable waterways.” The EPA wants to drop the word “navigable.”
That would give the agency authority not only over every body of water in the country, flowing, standing, or tidal, but it would also — allegedly — give it control over any land where water temporarily pools: NRO has already posted a good piece on the subject, by clean-water expert Andrew Langer. Last Wednesday, during a joint House–Senate hearing on the agency’s plans, EPA Administrator Gina McCarthy said that the EPA’s powers-that-be “are in fact narrowing the jurisdiction of the Clean Water Act.” This, then, is the latest chapter in the long story of federal agencies voluntarily relinquishing power.
Backing up Miss McCarthy, Senator Barbara Boxer suggested separating “fact from fiction. . . . Puddles, swimming pools, [and] stock ponds are not regulated.” That would be more comforting if the EPA hadn’t, less than a year ago, sentenced a Wyoming man to pay $75,000 a day in non-compliance penalties over a stock pond on his eight-acre farm.
The GOP wants to rein in the EPA, but, hitherto, the EPA has simply ignored its overseers’ oversight. This new EPA plan, after all, is subsequent to the Supreme Court ruling that the Clean Water Act gave the federal government power to regulate only waterways that constitute a “substantial nexus” of interstate commerce. So instead of laying out new hurdles for the EPA to circumvent, or ignore, the GOP should consider this:
In 1932, Chief Justice Brandeis wrote that a “state may . . . serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” The essence of federalism. Next time the EPA’s budget comes up, the GOP should include a laboratory experiment: entirely exempt one state from EPA oversight.
You might say that Brandeis-lab theory doesn’t apply to the environment; after all, we all breathe the same air. But this wouldn’t mean exempting the lucky state from federal environmental-protection law; it would still be bound by the Clean Air and Water Acts, etc. So there wouldn’t be an explosion of pollution; the EPA, in theory, doesn’t make law, it implements and enforces it. This would be a test of whether or not individual states can be trusted to follow the law without an $8-billion-a-year middleman. I suspect they can. Anyway, they won’t have to start from scratch: There’s a lot of EPA precedent for interpretation — parts-per-million this, carbon dioxide that — and the states will inherit all of it, free to keep the rational parts and throw out the rest. After a two- or four- or six-year test, if everything has gone to hell, the feds can step back in and clean up the mess. If the Cuyahoga can be cleaned up, so could any damage a state might theoretically do to itself or its neighbors in the short-term absence of parental supervision. Anyway, what state would allow itself or its water to be Cuyahoga’d, now that every politician in the country is conversant in environmentalism?
And if everything doesn’t go to hell — if state governments prove capable of independently implementing federal law — it would be grounds for abolishing the EPA. And maybe, in time, a few other departments too.
Alaska and Wyoming are good candidates, if they’re interested; an ideal state for the experiment will have lots of environment, not too many people, and a conservative government. The winning state’s total EPA remittal can be dropped into an EPA-only funding bill. And if the president won’t sign it, let the EPA go unfunded. We should be so lucky.
— Josh Gelernter writes weekly for NRO and is a regular contributor to The Weekly Standard.