An unprecedented power grab. That’s the only accurate way to describe the U.S. Environmental Protection Agency’s (EPA) new Waters of the United States (WOTUS) rule, which was made final on Wednesday. It twists the plain language of the Clean Water Act, which regulates the “navigable waters” of the United States, out of all recognition, to give the Obama administration powers over any land that might at any time be occupied by water, such as seasonal pools or drainage channels. Your use of your own property could become subject to veto by the EPA and Army Corps of Engineers — and you might not even know it until they stick you with $75,000 a day in fines. And if the rule itself is an abuse of power, the way in which it was finalized is just as outrageous.
After FDR massively expanded the government by creating of a host of new administrative agencies, it became clear those agencies needed to be constrained by formal procedures to prevent arbitrary rulemaking that could turn law-abiding Americans into lawbreakers. The result was the Administrative Procedure Act (APA) of 1946. It set out a formal rulemaking process that allowed for a public comment period during which all those affected by the rule could voice their concerns and provide additional information to the relevant agency. This seemed like an elegant solution to the Knowledge Problem of government identified by F. A. Hayek – the public knows more about the likely effects of a rule than the government’s so-called experts.
The APA worked well—though the explosion of rulemaking that began in the 1970s threatened to overwhelm it. Yet, its stated purpose—to involve those most likely to be affected in the decision-making process out of a basic sense of fairness—held true.
Until now. Thanks to a series of Freedom of Information Act (FOIA) requests from the Competitive Enterprise Institute into the secret “Richard Windsor” account of former EPA Administrator Lisa Jackson, we now know that the EPA gamed the comment period for the WOTUS rule from the beginning. Rather than publish the proposed rule and await comments, the agency actively and in advance prepared its environmentalist allies to deluge the agency with comments supportive of the rule. Meetings were held to brief “stakeholders” — which pointedly did not include likely opponents of the rule — to encourage them to get their members to submit favorable comments. These “stakeholders” included the Sierra Club, Natural Resources Defense Council, Earthjustice, and other green advocacy groups.
The use of the private email accounts points to a whole other layer of abuse. Current law forbids agency personnel from using private email accounts to conduct agency business. Yet, CEI’s FOIA request also turned up emails from current Region 9 administrator Jared Blumenfeld’s Comcast account, which he used to communicate with Jackson through her “Richard Windsor” account (the request also turned up various entries for Jackson’s Clean Water Act Constituency Group). Although Blumenfeld told the EPA Inspector General he did not use his private account this way (a statement Sen. David Vitter called an “outright lie”), CEI’s request obtained hundreds of emails on his private account to and from green pressure group activists and others.
While these “stakeholders” were being privately briefed on the rule, one witness testified at a May 2014 House Small Business Committee hearing that the EPA told his group, the Cattlemen’s Association, they would have to wait until the rule was published before meeting on the issue (see, for example, testimony at p.4 here.)
The tactic worked. EPA administrator Gina McCarthy was able to boast that 90 percent of the comments received were supportive of the rule, and used that to justify swift finalization of the new regulation.
Even the New York Times expressed concern at the nature of the outreach campaign. As the Grey Lady pointed out,
The Justice Department, in a series of legal opinions going back nearly three decades, has told federal agencies that they should not engage in substantial “grass-roots” lobbying, defined as “communications by executive officials directed to members of the public at large, or particular segments of the general public, intended to persuade them in turn to communicate with their elected representatives on some issue of concern to the executive.”
So the EPA’s actions weren’t just an abuse of the spirit of the APA, but a possible abuse of actual lobbying law, which forbids lobbying with appropriated funds.
To sum up, the agency ignored long-standing precedent to orchestrate a campaign to support a rule it drafted — in essence lobbying itself possibly in breach of lobbying law—to create an illusion of massive public support, and EPA officials used private email accounts, in another apparent breach of the law, to do so.
Congress needs to tell this rogue agency to clean up its act before other activist agencies get in on the act. The APA and/or lobbying law should be amended to make this sort of activity explicitly illegal. Of course, even that may not stop this EPA. FIFA officials should marvel at how easily the EPA stacked the decks in its own favor.