Environmental groups never had it so good. The Obama administration has given free rein to the Environmental Protection Agency to test the boundaries of executive authority, which they have done with gusto. The Supreme Court has slapped them down several times, citing unconstitutional overreach and violation of separation of powers because new rules go beyond existing law without Congressional approval.
President-elect Trump’s pick to head the EPA, Oklahoma Attorney General E. Scott Pruitt, has simply dared to do what more than half the states, dozens of industry and agricultural groups, and non-government constitutional advocates like Southeastern Legal Foundation have done over the past decade: oppose unconstitutional rulemaking by federal agencies based on the rule of law.
The wailing and gnashing of teeth against Pruitt’s nomination by the Sierra Club, the Environmental Defense Fund, the Natural Resources Defense Council, and others betray the vested interests and cozy relationships between these groups and the EPA that should be exposed.
Opinions about the veracity of human-caused climate change don’t — or shouldn’t — factor in. Either Congress makes the laws, or it doesn’t. And the prospect of executive branch disregard of the law in favor of any agenda should terrify all Americans, regardless of political views.
Pruitt’s efforts, like his counterparts, have been to stem the tide of EPA regulations that are part of a deliberate scheme to achieve command-and-control over American consumers, energy producers, and property owners. From the climate change rules, which were defeated in the Supreme Court in 2014, to the current Clean Power Plan and the breathtaking "waters of the United States" (WOTUS) claim over 95 percent of all property, the arguments are unswerving — the Clean Air Act and the Clean Water Act simply do not authorize the expansion of regulatory authority. Congress never reviewed and approved the new rules. The executive branch is making its own laws. Therefore, the rules are unconstitutional.
In that effort, Pruitt has been consistent. That’s exactly what a federal agency head should do. Enforce the law, but don’t make new law.
Consider Justice Scalia’s majority opinion in the 2014 Supreme Court omnibus case challenging the EPA’s climate change rules as pure executive overreach (a case in which Pruitt joined on behalf of Oklahoma): "Were we to recognize the authority claimed by EPA . . . we would deal a severe blow to the Constitution’s separation of powers . . . We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core . . . principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate."
But even the clearest rejection of unconstitutional overreach by the nation’s highest court hasn’t deterred Obama’s regulators. Cass Sunstein, Obama’s regulatory czar, foresaw that a new administration would enthusiastically challenge the government-by-decree architecture put in place by the current administration. He built a bulwark against future efforts to undo their handiwork. Sunstein said rolling back rules "will be a lot harder than you think." By burying the rules within existing laws, "a new president can’t just sign a piece of paper and make all these go away."
Sunstein’s assessment: A speedy new administration might be able to get rid of one regulation in about a year, maybe two. And, because so much of the rulemaking has gone on through the infamous "sue and settle" tactic used by radical environmentalists and their all-too-friendly counterparts at the EPA, the federal courts will be the only place many of the rules can be brought to heel.
And then there’s the revolving door of employment between the environmental groups and the EPA. In unprecedented fashion, more than a dozen EPA officials have held leadership positions with these groups immediately before or after their government posts during the past eight years.
Having challenged the EPA to follow the law over many years on behalf of his home state, EPA Administrator-nominee Scott Pruitt will face an entrenched bureaucracy that has been freely roaming — and crossing — the constitutional boundaries essential to our system of government. He will need the help of Congress to put the regulatory process back in order.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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