The level of scrutiny the EPA has come under in recent years is both well deserved and a driving factor for some voters in the upcoming election. We’ve watched as lawlessness and overreach in one executive branch department after another were exposed (the VA, the IRS, etc.) but few have come close to the levels of abuse on display at the EPA. President Obama has been a staunch defender of the agency and his pick to lead it, Gina McCarthy. But sensing a change in the wind, the EPA director is up on her hind legs defending the department and predicting that even if a Republican takes the White House this November, the EPA will march onward. (Government Executive)I disagree with this one. The famous tactic of "Sue and Settle" is often just that. Environmental groups and NGO's sue the EPA to force them to institute and enforce regulations that Congress has not mandated. If the EPA would like those regulations (as it almost always will, having pre-arranged them with the organization bringing the suit, usually by untraceable and illegal emails) it simply fails to put up an effective defense, and "settles" for what it wanted to begin with. Some judge shopping may be involved as well.
So how does Gina McCarthy, administrator of the agency on the receiving end of universal Republican animosity, respond? Not so fast.Given McCarthy’s lifelong service in appointed civil service positions after getting her B.A. in Social Anthropology from the University of Massachusetts, she really hasn’t had much direct experience in elected office and the operations of the legislature, so it’s perhaps forgivable if she really doesn’t quite understand how all of this works. First of all, while extra-legislative, executive branch decrees certainly carry the unfortunate weight of “laws” they are most certainly not laws in the conventional sense of the word. They are not voted on by representatives of the people and exist at the whim of the President and his appointees. There are indeed frequent challenges against them in the courts and sometimes they are batted down, but nobody ever goes to court demanding that new ones be put in place.
McCarthy said her regulations are “grounded in the law.”
“The one thing I know more than any other agency is EPA’s rules get scrutinized like no other,” the administrator said this week, as reported by The Washington Examiner. “They would have to go to that same level of scrutiny by any president should there be a reverse in direction.”
To follow through on their promises to undo virtually every regulation the EPA has issued in the last seven years would require a drawn out legal battle, she said. You would need a clear record to establish that or you will be working through the court system for a very long time,” McCarthy said. The EPA’s Clean Power Plan hangs in the balance at the Supreme Court.
Further, they have theoretical expiration dates which last precisely as long as their supporters hold the executive branch. They are rules which are regularly changed and will be changed again when the White House is no longer held by someone of a like mind. Putting these rules in place generally involves lengthy periods of hearings and public comment, but as we saw with the Keystone Pipeline, that’s all window dressing for the public and the White House will wind up doing what it wants in the end anyway.This would be true except that the rank and file EPA workers are, for the most part, true believers. When the GOP gains the presidency, they hunker down into a resistance mode where they continue to act against the programs of the new administration. You can change the administration of the top few levels of the bureaucracy with political appointments, but thanks to civil service rules, it is impossible to change the culture.
EPA delenda est.