I hate to mention Hoppy Kercheval at MetroNews twice in the same day. But what he wrote about the Obama administration EPA is about the best local example of what needs saying here. Here’s Hoppy, commenting on this week’s federal court ruling on mountaintop removal:
The beauty of a government agency, if there is such a thing, is that it is only supposed to do what the public policy makers have empowered it to do.
Of course, sometimes agencies do go rogue. The Environmental Protection Agency is a classic example.
Has the Obama EPA, in its efforts to reduce the adverse effects of the coal industry on the environment, public health, and the global climate, gone rogue? Well, the folks like Hoppy who are saying that now must not have been paying much attention during the previous administration, when George W. Bush was president.
John Walke, a senior attorney with the Natural Resources Defense Council, took this issue on last year on his blog, noting harsh criticism leveled at EPA by members of Congress, including West Virginia Republican Shelley Moore Capito, who called the EPA “the out-of-control regulation authority.” Here’s what Walke said we should remember:
Similar statements from House or Senate Republicans were notably absent during the prior Republican administration. This despite the fact that federal courts found the Bush administration EPA to have violated federal environmental laws repeatedly and egregiously.
In April 2008, the Bush EPA released a 20-page spreadsheet of 94 EPA rules or actions under just the Clean Air Act that had been challenged in court until that point during the Bush administration.
As of August 2011, 37 of those cases have been decided by a court, and in nearly two-thirds of those cases (23) the courts overturned the Bush EPA rules. (The remaining 57 cases have either settled, been voluntarily dismissed, voluntarily remanded, or are still pending in court.)
In 15 of those 23 adverse rulings, the courts found that the Bush EPA had contradicted or disregarded the plain language of the Clean Air Act. This is the worst way for EPA to lose a federal environmental lawsuit, because it reflects a court’s judgment that the agency defied the plain instructions of the law.
Public health and environmental groups were the prevailing parties in 18 of those 23 Clean Air Act rulings against the Bush EPA. These groups prevailed in 13 of the 15 “plain language” court decisions. EPA lost this startling number of Clean Air Act cases because the Bush administration had adopted unlawful regulations that benefited polluting industries at the expense of human health and the environment, despite unambiguous statutory directives requiring otherwise. This was truly out-of-control behavior.
These adverse court rulings occurred primarily in the Bush administration’s second term, because it took this long for unlawful, deregulatory regulations issued during the first term to wind their way through the courts. When federal courts returned these unlawful regulations to EPA for correction, the Bush administration then failed to re-promulgate these “remanded” rules before leaving office.
These critics [ of EPA] are advancing a fundamentally dishonest story line. They would have one believe that the Obama administration walked into office and decided to undertake a regulatory jihad against industry, a campaign to end the use of coal.
That is utter nonsense. It ignores the history discussed above and the Rule of Law 101. And it’s insulting to the intelligence of people everywhere who care more about the facts and law than political grandstanding and divisive rhetoric.