Whoa There Pardner, Check That Proboscis At The Door

Posted on August 17, 2009 by Chuck Becker

With a new sheriff in town, environmental change is a foregone conclusion. The only questions are how and when will change be made. Rules that are created to give effect to environmental statutes are where we can find the real heart and soul of environmental protection. Every modern-day president that has taken office has realized that he has a lot more power to quickly cause policy changes via rulemaking than through the ponderous process of legislation. As I have said before, President Obama is no exception and is already in the process of making significant changes to the environmental rules.

The only problem with the use of this power is that it does have some minimal safeguards in place – and apparently they were exceeded.

In April, Secretary of the Interior Ken Salazar asked the U.S. District Court for the District of Columbia to remand and vacate the Stream Buffer Zone rule. This was an 11th-hour rule change made by President Bush which made it easier to discharge water taken from mountaintop removal into streams. Salazar decided that this was a bad public policy and, according to him, it did not pass the “smell test.”

In ruling on the question, the D.C. Circuit Court said that, as discerning as Mr. Salazar’s nose might be, there is a right way and a wrong way to remove the odor. And Mr. Salazar’s attempt was the wrong way. In the words of the Court:

Here, the federal defendants seek a remand and vacation of the SBZ Rule without a determination on the merits that the SBZ Rule is legally deficient.

The Court finds no precedent to support the proposition that it should reward and vacate the SBZ Rule under the circumstances presented here. Moreover, the National Mining Association has the better argument that granting the federal defendants’ motion would wrongfully permit the federal defendants to bypass established statutory procedures for repealing an agency rule. The Administrative Procedures Act requires government agencies to follow certain procedures, including providing for public notice and comment, before enacting or amending a rule. An agency must follow the same procedure in order to repeal the rule.                        

In other words: Sheriff, the law says you have to have a town meeting before you close the saloon, so have the town meeting before you close the saloon.

It seems unlikely that the requirement that there be notice and an opportunity to comment will change the outcome in any manner, other than to slow things down a bit. But telling the sheriff that the law also applies to him is probably a good reminder that there’s a difference between a sheriff and, say, a king.

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How Did It Get Started: Politics and Environmental Law

Posted on April 20, 2009 by Chuck Becker

I was recently asked why it is that the federal government has had such a love affair with environmental regulation over the past 40 or 50 years.  I think I know the answer -- deception. 

When Cleveland's Cuyahoga River caught on fire in 1969, things started to happen.  Since that time, environmental awareness has gone from relative obscurity to being one of the top ten issues of the day. Certainly some of this change was caused by environmental interest groups like Sierra Club and Greenpeace, but if the environment had depended only on these types of groups, people would still be dumping used oil in the backyard. The real push for environmental reform came on the political front—the dozens of federal and state statutes and the thousands of pages of regulation that were created between 1970 and today.

But why weren’t the interest groups enough? Why did we end up with environmental regulation that rivals the bankruptcy and tax codes in complexity and sheer volume? Isn’t the environment above politics? Why doesn’t everyone simply demand and support a clean environment? It’s because people don't always tell the truth.

Over several decades you have seen the opinion polls consistently report that 70% to 80% of the people support a clean environment. Only love for mom and apple pie poll higher.  When you compare the poll results, however, with the sales of environmentally friendly products and the willingness to pay more in taxes or fees to accomplish that goal, you quickly determine that someone has been . . . uh . . . fibbing. The poll question that was actually being answered was: “If someone other than you is required to pay for it, would you give your wholehearted support to a clean environment?”

Still, if you look around today, there are dozens of environmental statutes in place.   That was a result of a few political leaders in the 1970s being convinced that a need for a cleaner environment existed but that the private sector could not accomplish it because of the huge costs involved.  In short, it was an issue that they viewed to be perfectly suited to federal, and at a later stage state, regulation.

My point is that a clean environment is extremely expensive and most people want others to pay for it. If this wasn’t the case, we wouldn’t need to be told how and when and in what form we need to do something as obvious as keeping the planet clean. It is the huge costs of compliance coupled with the unwillingness of individuals to pay those costs that has made, and will continue to make, environmental regulation and politics great bedfellows.

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