Nothing lasts forever, which is what the federal Environmental Protection Agency may be finding out. Formed in the very early 1970’s under President Richard Nixon, EPA for the last 45 years has become a sacrosanct agency, revered by environmentalists and feared by industry as ever tightening environmental regulations have taken hold. The agency truly has been on a par with the IRS and the Pentagon as a heavyweight exemplar of federal power.
Now, however, the era of EPA primacy, if not coming to an end, is threatened both in the corridors of the law and the riverbeds of Colorado and New Mexico. The first blow to EPA’s power came from the United States Supreme Court in Michigan v. Environmental Protection Agency, decided on June 29, 2015. In this case, the EPA enacted regulations under the Clean Air Act to govern coal- and oil-burning power plants, with a view to reducing pollution emanating from such plants.
EPA announced that its new regulations would benefit society from a reduction in regulated chemicals to the tune of about $4.6 billion a year. However, the cost of regulation would be about double that—some $9.6 billion a year.
EPA’s position before the Court was that the agency did not need to consider costs vs. benefits when deciding whether to regulate an industry. Rather, the agency argued, it needed to factor in costs only as a guide as to how much regulation to impose.
The Court, in a 5-4 decision, rejected this argument, saying "By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system." While the vote was close, this was a stunning legal loss for EPA—an agency unaccustomed to losing battles in the courts over the its authority.
If that were not bad enough, last week an EPA-supervised response to waste from mining activity in Colorado went awry when an impound holding back contaminated water burst and dumped 1 million gallons of mustard-colored, metal-waste contaminated water into a tributary of the Animas (aka Animus) River. The flood of contaminated water has continued to the present, with over 200 gallons per minute pouring into the tributary, the river and it is feared ultimately downstream through towns all along the river in Colorado and New Mexico. The consequences are dramatic—the towns along the river rely on the Animas for drinking water and farms along the river’s route rely on the river for irrigation water.
The affected communities are furious; and EPA has reacted, understandably, with embarrassment. To quote from an article on The Guardian newspaper website, “ ‘First off, I’d like to just say I’m sorry for what’s happened,’ David Ostrander, the EPA’s head of emergency management told a standing-room-only crowd in Durango, Colorado Friday afternoon. ‘This is a huge tragedy, and it’s hard being on the other side of this, in terms of being the one who caused this incident.…We usually respond to emergencies, we don’t cause them,’ said Ostrander.” http://www.theguardian.com/us-news/2015/aug/07/toxic-mine-water-epa-colorado-animas-river
The Supreme Court decision and the Animas River incident has given renewed ammunition to critics of the EPA, who contend that the agency has too much unchecked power and that the folks running the agency are not any smarter than the industries allegedly suffering from overregulation. Whatever the merit or lack thereof of those criticisms, the fact is that this is not EPA’s finest hour and for the first time in its history the agency risks losing that which it must have to keep its primacy—public confidence.
This column originally appeared in the Valley News Group of papers (west San Fernando Valley, California).
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