On stage at the Republican primary debate in Rochester, Michigan, on November 9th, Rick Perry’s thick brows bunched together amid beads of sweat as he struggled to remember the final federal agency he planned to eliminate. “What’s the third one there? Let’s see. Commerce, Education, and the, uh, ummm …”
Mitt Romney, to Perry’s left, offered, “EPA?”
No one blinked. After all, Perry had called the Environmental Protection Agency a “cemetery for jobs.” Michele Bachmann proposed renaming it “the job-killing organization of America” and promised that if she’s elected it will “have doors locked and lights turned off.” Newt Gingrich would replace it with an ill-defined “Environmental Solutions Agency.” Herman Cain would have eliminated the EPA and “start[ed] all over.” Romney, being Romney, says that he supports it in “much of its mission, yes; but in some of its mission, no.” In today’s Republican Party, it looks like that is the moderate position.
Conservatives have inveighed against federal regulations since time immemorial, but the antipathy they harbor toward the EPA is unique in its intensity, particularly under the Obama administration. To appreciate the threat the agency faces if the GOP sweeps the 2012 elections, it helps to understand the roots of that animosity.
The core laws that shape the EPA’s mission—the Clean Air and Water Acts, passed in the early 1970s—are among the most dynamic and aspirational ever to issue from the U.S. Congress. It’s not that the standards in the original bills were all that strict, but that they were designed to evolve. The laws mandate that the EPA regularly revisit its standards and update them based on the latest science.
Take the Clean Air Act, the main target of recent GOP attacks. It not only establishes specific rules for an enumerated class of pollutants, it also instructs the EPA to set standards for “any air pollutant” that “may reasonably be anticipated to endanger public health or welfare,” and to review and update those standards every five years. That makes the law a living, breathing thing. Congress or the president must intervene to prevent stronger and stronger clean air protections.
Environmental law, in other words, is one of the few federal domains where political gridlock can work in favor of science-based policy. All elected officials have to do is stay out of the way. Scholars David Sousa and Christopher Mc- Grory Klyza call this fitful but persistent advance of the law “green drift.”
What’s happened under Obama is that green drift has become a green sprint; his EPA’s schedule is, comparatively speaking, incredibly aggressive. This isn’t because Obama is a government-loving socialist; it’s because of two factors that played out before he even took office.
First, the Bush administration spent eight years slowwalking scientific review and cranking out rules too weak or ill-formed to withstand judicial scrutiny. In cases where the Bush EPA’s rules were challenged in federal court, the agency’s decisions were rejected in whole or in part eighteen out of twenty-seven times. That left an enormous backlog of court-mandated work for the EPA under Obama—more than any sane president would want, given the choice.
Second, there was a turning point in 2007: the Supreme Court ruled that carbon dioxide, as long as it can be shown to “endanger public health or welfare,” qualifies as a pollutant within the EPA’s purview. The agency then conducted an “endangerment finding,” consulting the latest science, and determined that, yes, climate change is a threat. It e-mailed the results to the Bush administration’s Office of Management and Budget, which promptly … refused to open the e-mail. (Really.) That left the task of developing the first-ever regulations on CO2 to Obama’s EPA chief, Lisa Jackson.
The pace of rule making combined with the extension of the rules to greenhouse gases has given conservatives the “regulatory overreach” story they need to declare war, not only on the individual rules coming out of the EPA, but on the agency’s ability to implement rules at all.
This is not the first time a Congress full of hotheaded freshmen has gone after the EPA. When Newt Gingrich rode to power in the Republican Revolution of 1994, he made the agency one of his first targets. However, as National Journal’s Ron Brownstein recounted in a recent column, Gingrich’s efforts quickly died out as more and more moderate Republicans turned against him. Back then, it was seen as politically dangerous to be pro-pollution.
Today’s politics are different. First of all, the economic downturn has left the public unusually receptive to an antiregulatory message, and the GOP has pressed that fact to their advantage—hard. Representative Henry Waxman, ranking member of the Energy and Commerce Committee, has grown so alarmed at the number of anti-environment votes in the 112th Congress that he built a searchable online database to keep track of them. At the time of this writing, Waxman’s database cites 191 votes to block, defund, undermine, or repeal environmental protections—an average of one a day. Of those votes, sixty-one target the Clean Air Act.
Second, Republicans have maintained astonishing lockstep unanimity throughout these votes. Rather than shedding moderates, as happened in the Gingrich years, they have been picking up centrist Democrats, even Democrats from competitive districts that Obama won in 2008. The prevailing conventional wisdom in Washington today is that it’s safer to be anti-regulation than to be pro-clean air—and that there’s nothing to fear from environmentalists or the president.
And finally, Republican proposals today are unprecedented in their sheer scope and ambition. They do not simply block this or that rule (though just about every proposed EPA rule has been voted down by the House at one point or another). Instead, they reshape the basic operations and independence of executive branch agencies.
One example of this is the TRAIN Act (that stands for Transparency in Regulatory Analysis of Impacts on the Nation). Introduced by Republican Representative John Sullivan, of Oklahoma, in September, it would create a special committee of cabinet members to analyze the costs to industry of any new EPA regulations. By law, EPA rule making is concerned only with public health and feasibility. States, which are charged with implementing the rules, are allowed to take costs to industry into consideration; in writing the rules, the EPA is not. TRAIN would introduce cost considerations into the rule-making process itself, a radical change and diminution of the law. (According to the EPA’s intensive, peer-reviewed studies, between 1990 and 2010 alone the Clean Air Act will produce almost $2 trillion in public health benefits; the cost to industry will reach just $65 billion.)
Or consider the REINS Act (Regulations from the Executive in Need of Scrutiny). This law would require that every “economically significant” federal regulation (one that has an annual impact of $100 million or more) be affirmatively approved by Congress. Again: no rule would go into effect until it has been voted through by both houses of Congress and signed by the president. If a regulation is not voted on within seventy legislative working days of being sent to Congress, it is “tabled.” That is, it dies.
It’s difficult to overstate how radical a change this would represent for U.S. government. It would subject fifty to a hundred regulations a year to the partisanship, rancor, and gridlock of Congress. Every rule would be a new opportunity for lobbying and industry influence. Worse, legal observers say the bill does not clearly prohibit a filibuster in the Senate, raising the possibility that a determined minority of forty senators could effectively shut down federal rule making. REINS would not overturn the Clean Air Act or shutter the EPA, but it would end forward momentum in environmental law, freezing it in place. Green drift would end for good.
It might sound like something out of the far-right fringe, but the TRAIN Act passed the House by a vote of 249 to 169—out of 234 Republican votes, 230 were in favor. The Senate has not voted on TRAIN yet, but it has voted on bills that include REINS twice, once garnering forty-seven votes for it, once forty. Crippling the EPA is now a consensus objective in the mainstream of the Republican Party.
So far, the Democratic Senate has prevented the House’s anti-environment votes from becoming laws. But if the economy continues to sputter and Republicans have a 2010-style sweep year, says analyst Nate Silver, “it’s within the realm of possibility that they could gain a net of thirteen seats.” That would give them a majority large enough to override filibusters. (Given the number of Democrats who have demonstrated willingness to vote against clean air protections, they might even have four or five votes to spare.)
Should that happen, a Republican Congress would almost certainly pass the TRAIN Act, the REINS Act, and bills blocking new EPA rules on ozone, mercury, and carbon dioxide. That would leave the fate of the Clean Air Act—indeed, the fate of the entire environmental regulatory apparatus— in the hands of the president.
Obama has said he would veto these bills. Rick Perry and Newt Gingrich would not. What would Mitt Romney do? As Massachusetts governor, he passed strict new clean air standards and proclaimed boldly that “I will not protect jobs that kill people.” Is there any of that Romney left? Or will he go with the anti-environmental flow of the national Republican Party?
America’s environmental laws have faced threats before. But depending for survival on the tensile strength of Mitt Romney’s integrity? That would be a precarious position indeed.