Thanks, EPA: Your New ‘Navigable Waters’ Rule Strengthens The Case Against Administrative Law

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When Con­gress passed the Clean Water Act in 1972, it was exer­cis­ing its pow­er to reg­u­late inter­state com­merce by pro­hibit­ing dis­charges into the nation’s “nav­i­ga­ble waters.” If a body of water could be used to trans­port goods from one state to anoth­er, it was cov­ered by the Act.

Like so many oth­er statutes enact­ed over the last 80 years – that is, since the advent of the admin­is­tra­tive state under FDR – the Clean Water Act (CWA) depends on bureau­crat­ic inter­pre­ta­tion and enforcement.

The two enti­ties involved with the CWA are the Envi­ron­men­tal Pro­tec­tion Agency and the Army Corps of Engi­neers. Both have tried to expand the scope of their reg­u­la­to­ry pow­er by issu­ing rules that defined “nav­i­ga­ble waters” so broad­ly that they have (or at least claim to have) author­i­ty over many bod­ies of water that couldn’t pos­si­bly be used to trans­port so much as a paper clip between states.

Twice, the Supreme Court has slapped down rules that amount­ed to a rewrit­ing of the law to suit the zeal­ous regulators.

First, in Sol­id Waste Agency of North­ern Cook Coun­ty v. Army Corps of Engi­neers (2001), the Court ruled that the Army Corps had no author­i­ty to assert con­trol over iso­lat­ed bod­ies of water – in that par­tic­u­lar instance, an aban­doned sand and grav­el pit.

You might think that the les­son would have sunk in, but in 2006 the Court had to deal again with anoth­er cre­ative inter­pre­ta­tion of the CWA in Rapanos v. Unit­ed States. The EPA had assert­ed that it could pre­vent a landown­er from doing any­thing with a wet­land that was near a ditch that even­tu­al­ly drained into nav­i­ga­ble water. The Court again ruled that the agency had over­stepped its bounds.

A cru­cial point here: When reg­u­la­tors lose court cas­es, it does not hurt them. Sure, they’re prob­a­bly angry at being told “no” but that’s it. There are no penal­ties for grab­bing unwar­rant­ed pow­er and mis­treat­ing cit­i­zens. An adverse court deci­sion, or even a series of them, has no deter­rent effect.

So it is not sur­pris­ing that the EPA and Army Corps recent­ly pro­posed a new rule defin­ing “nav­i­ga­ble waters” that, amaz­ing­ly, actu­al­ly goes far beyond its pre­vi­ous mis­be­got­ten efforts.

This new inter­pre­ta­tion would, write Pacif­ic Legal Foun­da­tion attor­neys M. Reed Hop­per and Todd Gaziano in a Wall Street Jour­nal op-ed pub­lished last Decem­ber, “rede­fine ‘waters of the Unit­ed States’ so broad­ly that it cov­ers vir­tu­al­ly any wet spot – or occa­sion­al­ly wet spot – in the coun­try, includ­ing ditch­es, drains, sea­son­al pud­dle-like depres­sions, inter­mit­tent streams, ponds, impound­ments, prairie pot­holes, and large ‘buffer areas’ of land adja­cent to every waterway.”

In short, these fed­er­al agen­cies want to give them­selves almost bound­less pow­er over a vast amount of pri­vate property.

On Wednes­day, Feb­ru­ary 4, a rare joint hear­ing was held in Wash­ing­ton before the House Trans­porta­tion and Infra­struc­ture Com­mit­tee and the Sen­ate Envi­ron­men­tal and Pub­lic Works Com­mit­tee. In a press release issued before­hand, Mr. Gaziano stat­ed that the com­mit­tee mem­bers should con­sid­er that the rule “is not just cost­ly and destruc­tive for farm­ers, ranch­ers, and rur­al res­i­dents,” but also that “urban and sub­ur­ban cit­i­zens and their local gov­ern­ments will be sub­ject to increas­ing fed­er­al micro­man­age­ment and cost­ly mandates.”

Based on the tes­ti­mo­ny, Con­gress might sug­gest that the EPA and the Corps recon­sid­er the rule; it’s also pos­si­ble that Con­gress could block its enforcement.

But there is a point here more fun­da­men­tal than the pros and cons of this, or any, admin­is­tra­tive reg­u­la­tion. Do we real­ly want our laws to be made by unelect­ed, unac­count­able bureaucrats?

With the con­stant expan­sion of the reg­u­la­to­ry state since the 1930s, Amer­i­cans have got­ten used to hav­ing to obey (although some­times bat­tle) rules decreed by those bureau­crats. It is a bad habit that we should break, argues Colum­bia Law School pro­fes­sor Philip Ham­burg­er in his pow­er­ful book Is Admin­is­tra­tive Law Unlawful?

His unequiv­o­cal answer is that it is unlawful.

The Founders had very good rea­sons for writ­ing in Arti­cle I that all leg­isla­tive pow­ers were vest­ed in Con­gress. The exec­u­tive branch was not to have any leg­isla­tive pow­er; no author­i­ty to dic­tate the kinds of rules exem­pli­fied by the EPA/Army Corps rule in question.

Pro­fes­sor Ham­burg­er argues that our “admin­is­tra­tive law” is a throw­back to the days of roy­al pre­rog­a­tive, when mon­archs and their min­ions act­ed as law­mak­er, enforcer, and judge all in one. Over the cen­turies, Eng­lish­men bat­tled to escape from roy­al pre­rog­a­tive by putting lim­its on roy­al pow­er and divid­ing it. The Amer­i­can Founders knew that and were deter­mined to make sure that pre­rog­a­tive did not resur­face in the Unit­ed States.

Toward that end, they cab­ined the leg­isla­tive, exec­u­tive, and judi­cial pow­ers of the fed­er­al gov­ern­ment in sep­a­rate branch­es. Admin­is­tra­tive law undoes their handiwork.

Hold­ing a con­gres­sion­al hear­ing to exam­ine the impli­ca­tions of an admin­is­tra­tive rule and then pos­si­bly ask­ing the agen­cies involved to recon­sid­er it is con­sti­tu­tion­al­ly ridicu­lous. It could make sense for the bureau­crats to sug­gest that a law be amend­ed by Con­gress, but makes no sense for bureau­crats to rewrite or decree a law, which stands unless the leg­is­la­tors decide they don’t like it.
Both Con­gress and the Supreme Court are com­plic­it in this. Con­gress likes to write vague laws that leave the hard part to bureau­crats who don’t have to wor­ry about being vot­ed out of office if their rules do a lot of harm. It could stop doing that. Bet­ter still, go back to exist­ing statutes, sun­set all reg­u­la­tions, and either approve or reject them as they expire.

For its part, the Supreme Court should breathe life back into the once-for­mi­da­ble doc­trine that Con­gress may not del­e­gate its author­i­ty. It upheld that doc­trine until the mid-30s and has nev­er over­ruled non-del­e­ga­tion prece­dents like Carter v. Carter Coal.

Some peo­ple will undoubt­ed­ly say that we can’t “turn the clock back,” but it’s admin­is­tra­tive law that turns the clock back, back to the era of cen­tral­ized gov­ern­ment pow­er. Restor­ing our con­sti­tu­tion­al prin­ci­ples would be an advance.