OPINION:
So far, there is really nothing negative to say about Lee Zeldin’s leadership at the Environmental Protection Agency from a conservative point of view, except that maybe he has not gone far enough (yet) with deregulation, but one recent move deserves special attention.
EPA Deputy Administrator David Fotouhi recently gave Breitbart News exclusive comments regarding the EPA’s Guidance Portal, an online platform that provides a searchable database of important regulations and requirements for businesses and landowners. It’s meant to provide an easy-to-use guide.
As Mr. Fotouhi told Breitbart, “If you’re in any way subject to one of our regulatory requirements or statutory obligations, you can go on there and conduct a search and see very clearly what the agency’s interpretation of that requirement and how it applies to your situation.”
In other words, the Guidance Portal is intended to help people understand government environmental regulations so that average Americans and small businesses without teams of regulatory lawyers on retainer don’t accidentally run afoul of one of the many overlapping and complex rules and requirements. Rules such as the 1970 Clean Air Act, 1972 Clean Water Act and 1973 Endangered Species Act, and their various updates, can affect what someone does on their property. Thus, landowners must be aware of every regulation and how it applies in their specific case.
Mr. Zeldin also pointed out that the portal should help alleviate some of the high costs of attorneys who would otherwise be needed to navigate the maze of rules and regulations.
Mr. Fotouhi told Breitbart that feedback on the portal can help the EPA find places to simplify and eliminate redundancies and bloat. Imagine that!
This seems like a no-brainer and something everyone would support. However, President Trump directed his agencies to do the same during his first term via executive order. Predictably, as soon as Joseph R. Biden entered the White House, he (or his handlers) put a stop to it by rescinding the order to suppress the guidance portals. Although the Biden EPA was unable to totally shut them down without an official rule, it stopped updating them. Why might that be?
Opaqueness has benefits for an enviro-tyrannical government. Making it more difficult for farmers to figure out whether they are allowed to put a barn on their land or build a road can prevent them from doing anything the EPA may not like. Opacity allows regulators to apply rules arbitrarily.
Environmental regulations, especially when vague, have destroyed many lives, especially under Presidents Obama and Biden. The first example that comes to mind is the recent Sackett v. EPA Supreme Court case, in which the EPA leveraged ambiguities in the Clean Water Act to stop a family from building a house on a small lot they owned in Idaho. They were in the process of moving earth when the EPA swooped in to say their property counted as a protected wetland because it contained “navigable waters.”
The agency demanded that the Sacketts put back all the dirt and imposed thousands of dollars per day in fines for every day they didn’t comply. Those “navigable waters” consisted of a ditch near the property that sometimes filled with water during heavy rain and fed a shallow creek.
Fortunately, the Supreme Court sided with the Sacketts, but that was after 16 years in the courts. It never should have gone that far. It was absurd, but the EPA gets away with that kind of harassment when the law is nebulous, arbitrary and difficult to understand. Most people won’t fight it out the way the Sacketts did because the idea of sitting in court for a decade or more is not something they can afford or handle.
The Sacketts case is just one of many. In particular, the Clean Water Act has a long history of vagueness, shifting definitions of what counts as navigable water and arbitrary application. The EPA has fostered this to expand its mission and the scope of its authority.
In Allegheny Wood Products v. U.S. Fish and Wildlife Service, the Allegheny Wood Products company had applied for an “incidental take” permit that would cover it in case some endangered species were harmed by the logging operations on land that might be home to several animal species. The Fish and Wildlife Service thought the company’s application was incomplete and that its required “habitat conservation plan” was insufficient.
Meanwhile, Allegheny Wood Products was losing millions of dollars while waiting for the permit to be approved. The vagueness of the Endangered Species Act and how it applied to their situation in West Virginia caused delays and denials with the Fish and Wildlife Service for more than a decade.
Again, this kind of uncertainty is devastating when regulators turn their ire on you or your business. A Guidance Portal won’t stop the EPA from having vague and/or broad rules, but it will make it easier for average Americans to at least understand what the law requires and what actions they might take to avoid sparking agency oversight, control and penalties. It should be clear what the law is and what it takes to comply with it.
The Guidance Portal provides an electronic paper trail and something that can be used as official EPA guidance.
Although there is a long way to go before I would say the EPA has completely returned to its appropriate regulatory scope, increasing transparency is a good start toward improving the agency’s historically hostile relationship with property owners and businesses in the United States.
• Linnea Lueken (llueken@heartland.org) is a research fellow with the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute. X: @LinneaLueken
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