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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By John Pearson
April 8, 2016
The Environmental Protection Agency’s (EPA’s) recent hearing is a good case study in politics and administration. It highlights the importance of legislation and congressional oversight (the political side) and an agency’s rulemaking and enforcement actions (the administrative side).
On Feb. 11, 2016, EPA Administrator Gina McCarthy testified for three hours before the House Agriculture Committee. The topic of this hearing was the impact of EPA’s actions on the rural economy. Much of the hearing addressed EPA’s recent Clean Water Rule, which clarifies the scope of the term “waters of the United States.”
EPA regulations can be very controversial because the benefits from environmental regulation may be large but the compliance costs to business may also be large. EPA is one agency where a change in administrations may have a large effect on policy because the political appointees will reflect the President’s agenda.
The need to clarify five words in the Clean Water Act (“waters of the United States”) caused EPA to write a six-page regulation. EPA’s economic analysis (page 33) estimates the benefits from the new regulation may exceed costs annually by as much $263.9 million or as little as $69.7 million.
At the time of the hearing, a federal appeals court had blocked implementation of the regulation.
Major takeaways from the hearing
Some Members of Congress strongly disagreed with the EPA’s policies, especially with respect to the clean water regulation. They also expressed concerns about EPA’s clean power policy, specific enforcement actions in member districts and EPA’s performance in episodes such as the recent Colorado spill and the water crisis in Flint, Mich.
The Members’ questions appeared to reflect true policy differences and performance concerns. There didn’t appear to be many questions asked just to score political points.
Members cited specific chapter and verse from the U.S. Code and from EPA’s regulations. The questions appeared to be prompted by constituent concerns. For example, farmers and ranchers are concerned with potential cost burdens arising from the clean water regulation.
Again and again there was one recurring issue: are EPA’s actions lawful under the Clean Water Act and other statutes? Several members thought not. McCarthy stated the agency’s actions in every case were lawful and proper.
One Member complained about EPA’s possible violation of the Anti-Deficiency Act. Other Members appeared to be frustrated they could do nothing to stop EPA’s policies. They don’t have the votes to overturn what EPA is doing. Members noted that the courts have intervened to suspend EPA’s enforcement of both the clean water and clean power initiatives.
On numerous occasions, McCarthy didn’t know the answer to some of the questions. The complexity of the EPA’s work is so great that she wasn’t totally prepared for every question posed, even though her staff no doubt tried very hard to prepare her. The hearing most likely generated a lot of follow-up staff work. Members will expect answers to their questions if McCarthy promised an answer.
Members also complained about EPA’s failure to respond to specific Freedom of Information Act (FOIA) requests. McCarthy acknowledged that a number of FOIA requests were pending. She wasn’t aware of the particular ones in question.
Despite the strong differences, the Members and McCarthy were courteous to each other throughout the hearing.
Public administration issues are like an iceberg. A few issues are above the water at any given moment and receive public attention, but the vast majority of issues flowing from existing laws are submerged from view. Legislative hearings often just scratch the surface.
Most administrative actions go unnoticed by the press or politicians. But all actions on the administrative side are subject to review on the political side—major ones like the new clean water rule and very minor ones such as an agency’s spending on an awards celebration. Administrators must be prepared to provide their political superiors with the legal and policy basis for any and all agency actions. Political issues are not necessarily administrative issues, but any administrative issue can be a political issue. A complete politics/administration dichotomy is not realistic.
I believe there is seldom a clear-cut public interest in debates such as the one about EPA’s clean water regulation. To start, the parties usually have a different understanding of the facts. EPA believes the benefits of its regulation exceed the costs, but it can’t know that for sure. Its estimates include many assumptions. Opponents believe the reverse: that costs exceed benefits. But even if both sides agreed exactly on the costs and benefits, there would still be differences of opinion because of the different values people have.
Some Members may value protecting their businesses from additional, burdensome costs despite possible environmental gains from the regulations. Other may be more concerned with achieving environmental improvements and are less concerned about additional costs on businesses. In such situations, it may be better to think of the public interest as indeterminate.
Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].