Jon Devine, Senior Attorney, Washington, D.C.
In a move reminiscent of the attempt to stop the Environmental Protection Agency’s non-existent plan to regulate “farm dust,” six Senate Republicans yesterday sent EPA Administrator Gina McCarthy a letter demanding that she disavow a clean water policy that the agency has never adopted.
Here’s some quick background. As I wrote recently, EPA and the Army Corps of Engineers took a couple of positive steps toward better protecting streams and wetlands from uncontrolled pollution and destruction by initiating an effort to update the rules identifying waterways protected by the Clean Water Act. This was good news for people who get drinking water from systems that rely on small streams for supply (over 117 million Americans), to say nothing of the rest of us, who benefit from the flood control and pollution filtering functions provided by wetlands.
As they took these steps forward, the agencies also took a distinctly less positive action: they formally withdrew from White House consideration a long-delayed draft policy document that would have replaced a harmful Bush administration policy that has made it difficult to prevent pollution of a wide variety of water bodies. As a consequence, we’ll be stuck with a less protective approach until the agencies complete a rulemaking action.
Withdrawing these draft guidelines, even coupled with the welcome announcement of new rulemaking, was deeply disappointing, because crucial waters have been inadequately protected for far too long, and because the administration could’ve finalized the new guidelines with a stroke of a pen. Delaying improvements – even incremental ones – misses an opportunity to keep water bodies safe from pollution while the agencies work out the details of a rule.
But there’s one group of people – those who have consistently opposed strong clean water protections – who you would’ve expected to be thrilled with the agencies’ step back from taking near-term action. So, having Senators David Vitter (R-LA), John Barrasso (R-WY), Mike Crapo (R-ID), Deb Fischer (R-NE), John Boozman (R-AR), and James Inhofe (R-OK) demand that EPA publicly acknowledge the already-public withdrawal of its draft guidelines and instruct field staff not to use the draft (which they’ve never been told to use), is a classic case of refusing to take yes for an answer.
The Senators’ letter is worth a read, because it is rife with hyperbole about EPA’s alleged non-transparency about this public fact, lacks factual support, and attempts to undermine the rulemaking that EPA and the Corps have initiated. They claim that they’re aware of one whole example (out of roughly 100,000 such actions a year) of the draft guidelines being used, but then don’t provide a shred of evidence to back up their claim. Nevertheless, they write that “because EPA chose to be less than forthright, the agency’s rulemaking efforts may now be plagued by uncertainty and distrust on interim jurisdictional questions.”
Most absurdly of all, the Senators demanded a public announcement from EPA disavowing its non-policy by October 9th, and said “the agency’s failure to accommodate our requests will serve as a confirmation that EPA and the Corps intend to improperly rely on the draft guidance….” Great – invent an issue and insist that an agency declare it’s not an issue or else treat it as proven. I’d like to do that with the FAA; unless I hear from them that I am not allowed to fly a plane notwithstanding my lack of training or skill, I’ll be taking off for Tahiti sometime next week!
But it gets even weirder when you think about what’s going on in Washington right now. How exactly will EPA and the Corps articulate and announce their non-policy by the deadline the Senators set if the government shutdown persists into next week? Ninety-four percent of EPA staffers are currently prohibited from working because of the Tea Party Republican-led shutdown. In fact, all six of the Senators demanding an answer from EPA voted against the Senate’s bill to keep the government open.
How EPA will respond to this, I don’t know. I hope the agency will not just cave in to this silly demand, because doing so will only encourage these Senators (and others who want to see EPA fail) to repeat it over and over for other non-issues and because developing a response will simply waste time and resources that could be better spent on actually getting improved protections in place.