BY MICHAEL P. TREMOGLIE
WASHINGTON (Legal Newsline) -- The U.S. House of Representatives Transportation and Infrastructure Committee has approved proposed legislation to prevent the Environmental Protection Agency and the Army Corps of Engineers from what it termed "dramatically and illegally" increasing their regulatory power of water and land using the Clean Water Act.
The bill -- H.R. 4965 -- will prohibit the EPA and the ACE from attempting to avoid proper federal rulemaking procedures "by finalizing or implementing EPA and Corps Clean Water Act "guidance" in order to significantly broaden the scope of federal jurisdiction under the Act." The bill was approved by the committee with a bipartisan vote of 33 to 18.
"Any agency efforts to expand the federal government's regulatory reach must be done with transparency under the Administrative Procedures Act - not the unlawful, backdoor conversion of publicly unvetted agency guidance into de facto federal regulation," said John L. Mica, R-Fla., the bill's sponsor and full committee chairman.
Other sponsor of the bipartisan bill are Full Committee ranking member Nick J. Rahall, D-W.Va.; Water Resources and Environment Subcommittee chairman Bob Gibbs, R-Ohio; Agriculture Committee chairman Frank Lucas, R-Okla.; Agriculture ranking member Collin Peterson, D-Minn.; Rep. Kristi Noem, R-S.D.; and 58 other members.
"This is another example of an over-reaching Administration trying to force more federal control over the lives of our citizens, farmers, and businessmen," Mica said. "This so called 'guidance' goes far beyond clarifying the federal government's jurisdiction and instead would significantly increase the EPA's power under the Clean Water Act."
"EPA and the Corps have acknowledged that this guidance represents a significant increase in the scope of the Clean Water Act's jurisdiction," Gibbs said. "Of particular concern is the manner by which these agencies have attempted to expand Federal Clean Water Act jurisdiction.
"This legislation is not an attempt to 'roll back' provisions of the Clean Water Act or eliminate environmental protections. The purpose of H.R. 4965 is to prevent the Agencies from skirting the law and avoiding a transparent rulemaking process by prohibiting EPA and the Corps from finalizing, adopting, implementing, or enforcing this or any similar proposed 'guidance.' It is unfortunate that the Agencies have chosen this backdoor approach to rulemaking instead of a proper, transparent process. If the Administration seeks statutory changes to the Clean Water Act, then a proposal should be submitted to Congress and we will have a healthy debate. Until that time, the current flawed process needs to stop."
The language of the bill states:
"In General -- The Secretary of the Army and the Administrator of the Environmental Protection Agency are prohibited from --
(1) finalizing, adopting, implementing, administering, or enforcing the proposed guidance described in the notice of availability and request for comments entitled 'EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act' (EPA-HQ-OW-2011-0409) (76 Fed. Reg. 24479 (May 2, 2011)); and
(2) using the guidance described in paragraph (1), or any substantially similar guidance, as the basis for any decision regarding the scope of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or any rulemaking.
(b) Rules- The use of the guidance described in subsection (a)(1), or any substantially similar guidance, as the basis for any rule shall be grounds for vacating the rule."
The EPA has been criticized in several different federal courts for its actions in recent months. Several of its rulings have been reversed even by judges appointed by Democrats including an Obama appointee. The judges, in their written opinions, have described the EPA policies as being wholly made up and beyond the scope of its authority.
None of this comes as a surprise to Dierdre Duncan, attorney for Hunton and Williams, Washington D.C. She practices exclusively on environmental, energy and administrative law. She specializes in permitting, compliance and litigation regarding the CWA, the Endangered Species Act, the National Environmental Policy Act (NEPA) and other environmental statutes. She served as Assistant General Counsel of the Army at the Pentagon, advising the Secretary of the Army on environmental and land use issues involving the Corps of Engineers' Civil Works and Section 404 Regulatory Program.
She was critical of the Obama administration's environmental efforts led by the EPA boss Lisa Jackson.
"This administration came in looking to push their authority as far as they could go," she said. "They have been incredibly aggressive trying to expand their authority over coal mining in the water arena. They wanted to push the envelope. They take action administratively - even if it is on shaky legal ground - because they want to force the other side to stop it."
While the EPA has been severely reprimanded the Army Corp of Engineers actions has gone largely unnoticed until now. Pennsylvania's Secretary of Environmental Protection, Michael Krancer, testifying at a House committee hearing on May 31 he said, "It's not just about the EPA. The Army Corps, for example, with respect to developing infrastructure is overstepping its review of projects and treating projects today differently, [such as] pipelines, than they ever had in the past."
"It has probably no chance in the Senate. Even if it does get passed by the Senate it will probably be vetoed by the president. It is an obscure issue. It is a guidance - they are telling their staff how to regulate something. I do not see it getting enough popular support and President Obama is not going to alienate his environmental base," said Dr. Kenneth Green, an environmental expert with the American Enterprise Institute.