Searching for EPA’s Poison Pill

For the third time this year, Republicans in Congress seem to be angling for a government shutdown.  Not only will there be disagreements on funding levels, but the House will insist on attaching riders to appropriations bills preventing agencies from doing various things.  I realize that this may come as a shock, but the House GOP, which has already declared climate science to be a hoax, will attempt to forbid EPA from using any funds to promulgate carbon dioxide regulations.  President Obama has threatened a veto.

The problem with this scenario is that it plays into the hands of the Republicans.  If Congress passes a bill with a rider and the President vetoes, great: then EPA has no funding and must shut down completely.  Just what they want! So the task for those who support EPA’s mission is to find a mechanism whereby an agency shutdown could inflict political damage on Republican constituencies, thus making the GOP see the need for a compromise.

Several months ago, I suggested that if EPA shuts down, then it couldn’t issue any Title V permits under the Clean Air Act or NPDES permits under the Clean Water Act, and that would put business in a position of really wanting to keep the agency open.  But then Professor Holly Doremus, who has forgotten more about EPA than I am ever going to know, gently reminded me that these two system are currently administered by the states: an EPA shutdown would not affect states’ ability to issue permits.  So I am still looking for the poison pill.

Well, here’s another try: the 404 permit under the Clean Water Act, required in order to discharge any dredged of fill material into the waters of the United States (and thus required to fill any wetlands).  This permit, of course, is not given by EPA, but rather by the U.S. Army Corps of Engineers.  But EPA has authority here: it comments on applications, and most importantly, under Section 404(c) of the Clean Water Act, it can veto proposed permits.  EPA has used this authority very sparingly: the Corps has granted upwards of 80,000 permits each year, and since 1972, EPA has issued twelve vetoes.  (One might argue that EPA has vetoed too sparingly, but that’s another question). 

Nice Little Wetland You Got Here: Too Bad If Something Were To HAPPEN To It...

So what if, the day before EPA’s budget authority is to expire, the Agency issued blanket vetoes of all pending 404 permit applications?  Or how about only those permit applications from firms of particular importance in Republican congressional districts?  EPA materials suggest that then there would be a public comment period, and afterwards the relevant regional administrator would have to make a determination as to whether to let the permit go ahead.  But of course if the budget impasse is not resolved by then, the regional administrator couldn’t make that determination, because she wouldn’t have the authority to do anything.

It’s not clear to me whether this strategy could work, or whether there are circumstances in which lack of responsiveness by EPA would give the Corps the authority to just move ahead.  But it is worth exploring, not for its substantive value, but rather for its procedural worth in what I have called the Age of Dysfunction.

Obviously, this is no way to run a railroad.  But that’s what the Tea Republican Party wants nowadays: constant hostage-taking and threats to destroy the basic working of the government.  At some point, someone will have to communicate to the GOP that there are costs to plutocratic nihilism.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

13 thoughts on “Searching for EPA’s Poison Pill”

  1. The ultimate strength of the presidency rests with its unilateral control over foreign policy and the security apparatus.

    A president who actually wanted to win a fight with the GOP could inflict enormous damage on critical GOP donors by–for instance–indicting them for violating trade embargoes, waging commercial espionage against GOP businesses and giving any commercially useful information discovered to competing companies or by putting Republican donors on lists of proscribed persons not allowed access to the economy. The House GOP would not hold out for long if the word was quietly passed that any further attempts to sabotage the government would be met by a night of the long knives against the entire GOP fundraising base.

    Obama, of course, will not do any of this because he is more likely than not ultimately sympathetic with Republican objectives and is more interested in collaborating with America’s domestic enemies rather than fighting them.

  2. I agree that there is a serious audacity gap between Rs and Ds in Washington. After all, the Rs extracted major policy changes in exchange for the procedural move of raising the debt ceiling. And even though I’m not personally persuaded by the theory that 14th Amendment authorized ignoring the ceiling, there was no good reason for Obama to say so – he could have ignored the theory just as easily as rejecting it, for all that it mattered on positioning himself as reasonable.

    But there is a difference between audacity and pettiness. Proposal like this on or the prior suggestion not to pay SS to heavy-R House districts are only petty. This level of mean-spirited partisanship is a whole level of bad governing worse than the debt ceiling stand-off. Basically, the Rs do things knowing it’s bad for the country, and you propose a response with the purpose of doing bad things for the country.

    And even if you don’t buy the good government argument, the politics are horrible. Refusing to raise the debt ceiling was a bad idea if you thought about it for even a few moments. But pettiness is obviously bad, even if you give it no thought at all.

    In short, don’t be petty. Don’t suggest our leaders be petty.

    1. GOP-Dem showdowns in the past few years have been characterized by one side bringing a copy of Robert’s Rules of Order to the negotiating table with the other side bringing a flamethrower. It’s not “petty” to show up armed when the other side is planning to kill you–it’s a matter of survival.

      Unilateral disarmament does not work.

      The only way to win against the GOP is to maim–not merely hurt, but maim–constituencies they care about. Make the red state elderly pay the price for voting GOP. Make them starve.

      1. I agree. Unilateral surrender is bad. But I get off the bus when maiming, even metaphorically, is considered an appropriate verb. Seriously, how is attempting to harm people simply because they are political opponents consistent with equality before the law? Further, intellectual purity purges are fun and all, but they do not persuade undecideds to vote for Team Good.

      2. But, considering that the Republicans are doing their obstruction using the fact that they won elections, and the proposal is to find ways by which unelected bureaucrats can punish the legislature for voting in ways they don’t like, who’s the one with the flamethrower?

  3. Obama could also do what Bush did in the runup to the Iraq war, and simply order the treasury to transfer funds to the EPA silently. But I guess the unitary executive only applies to republicans.

  4. Tim’s right….there is a serious audacity gap. We have to understand that the r’s are so far off the reasonableness scale right now that there really is no other response than to get nasty with them and their constituencies. If nothing else it will generate some enthusiasm among the d’s and for Obama and that is important considering that his base is really wondering if he is one of them. I really don’t hold out any hope that Obama and Dusty Harry will actually do anything like this…..it will most likely be more of the same from them.

  5. As per Prof. Doremus’ link, not all states have fully delegated authority under NDPDES standards, so this issue is still relevant to them. I believe the same is true for Clean Air Act delegated authority, but I don’t know the field in detail.

    Even places with fully delegated authority would have trouble updating their standards absent the EPA, which some industries might welcome, but others might not.

  6. Interesting thought experiment, but I’m afraid it fails in the face of Republican thirst to shut down the EPA and as much of the modern regulatory state as possible, and that’s partly because, as you imply but don’t quite state, the EPA doesn’t actually do a whole hell of a lot of the kind of real regulating we enviros would wish them to do.

    The possible loss of the tip of the nose is not much deterrent to the man who’s sharpening the knife to cut the whole thing off.

  7. Brett: the cohabitation of opposite parties in the executive and legislature is a scenario not envisaged by the Founders, under the fond and short-lived illusion that their pretty oligarchical clockwork would prevent the emergence of strong (hiss hiss) democratic parties. So now you have it, hat rules apply to the standoff haggling? None apart from civility and common sense. Since the GOP have thrown these away, the Dems are under no obligation not to be as ruthless. Obama’s 2008 mandate is IMHO still intact, even though the House GOP (but not the Senate!) has a 2010 mandate to obstruct it.

    You could argue that the most recent election wins (that is, if it was a Republican victory). That doesn’t settle the case (quite likely in 2012) when simultaneous elections lead to cohabitation. A scheme that is Presidential for two years then parliamentary for the next two doesn’t make much sense. Nor, in fact, does a two-year cycle make sense in a pure parliamentary régime: it means judging performance on the strength of at most one major reform that can’t possibly have been implemented yet. Developed parliamentary systems tend SFIK to have four- or five-year cycles.

    The French, who treat their constitution as a highway code for the Republic not its sacred founding scroll, more or less fixed their cohabitation problem under the Fifth Republic by synchronising the parliamentary and presidential election timetables. This might make a nice reelection campaign plank for Barack Obama, constitutional scholar.

  8. James, the fact remains that Republicans are not torching the capitol, or even occupying it illegally. They are, just precisely, using “Roberts Rules of Order”, voting to not do what you want them to do.

    No flamethrower involved. You want flamethrowers? Look no further than, as I say again, looking for ways for a regulatory agency to punish voters. Under no concept of democracy I feel the slightest urge to respect is that a legitimate aim for a regulatory agency.

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