EPA, the nature of regulation, and democracy

My Hoover colleague Richard Epstein posted a revealing essay on the nature of environmental regulation last week, with environmental regulation as a particular example. The contrast with "Environmental Laws Under Siege: Here is why we have them"  in New York Times  and the New Yorker's  Scott Pruitt's Dirty Politics is instructive

Epstein's point is not about the raw amount of or even what's in the regulation, but the procedure by which regulation is imposed:
As drafted, NEPA [National Environmental Policy Act of 1970 ] contains no provision that allows private parties to challenge agency decisions in court. Instead, the NEPA approval process is a matter for internal agency consultation and deliberation that takes into account comments submitted by any interested parties. 
One year after its passage, NEPA was turned upside down in a key decision by Judge J. Skelly Wright of the D.C. Circuit Court of Appeals... Wright read the law as giving private parties the right to challenge government actions. Indeed, Wright welcomed such challenges, writing (admiringly) that the change, “promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment.”
Giving private parties the right to challenge an agency decision grants enormous leverage to the private parties most opposed to letting projects go forward. In the case of nuclear power, delay became the order of the day, as the D.C. Circuit on which Judge Wright sat arrogated to itself the power to find that any EA or EIS was insufficient in some way, so that the entire project was held up until a new and exhaustively updated EIS was prepared—which could then be duly challenged yet again in court.

Epstein offers another case:
... the approval process for the construction of the 1,172-mile Dakota Access Pipeline (DAPL), and its offshoot, the 163-mile Bayou Bridge Pipeline, ...Both pipelines are capable of transporting close to 500,000 barrels of crude oil per day by incorporating state-of-the-art technologies that make them far safer than the alternative means used for shipping crude oil long distances: the railroads and trucks that create logistical nightmares and are capable of causing catastrophic spills, and the older pipelines that are still in service....
In case you missed it, the pipelines have large net environmental benefits. Pipelines are better than trucks.
Nonetheless, the completion of DAPL has been delayed by fierce objections from both Native American groups and environmental groups. Under NEPA, they have legal standing to object to any proposed project by pointing to improbable risks while ignoring the undisputed gains in safety and efficiency that these pipelines promise. ...
...The sustained objection to the pipelines is driven not by any concern for safety, but by an overarching effort to use the NEPA process to stop the production, distribution, and use of fossil fuels.
If you want a left of center example, environmental suits have been used to slow down the still nonexistent California high speed train.

Epstein offers procedural remedies, not ram-my-view-down-their-throats
NEPA thus needs to be cut down to size. For starters, courts should reject Calvert Cliffs. Today’s courts must be much more sensitive to the necessary trade-offs before overturning the detailed factual findings that government agencies make on technical matters in approving projects. In addition, courts should be reluctant to stop projects because of some gap in an EA or EIS.... And third, they must explicitly take into account the major environmental, economic, and political gains that the project has to offer, such as the removal of more dangerous modes of transportation in the case of the pipelines.
This reflects my larger view in an earlier essay on regulation. The issue is not a simple "more vs less" regulation, the issue is how regulation proceeds.

The New York Times offers an interesting contrast. In an article titled "Environmental Laws Under Siege: Here is why we have them" --- in the news section, not opinion -- reporters Livia Albeck-Ripka and Kendra Pierre-Louis remind us of some of the environmental disasters of the 1960s. For example, the Cuyahoga River really did burn, 13 times. They conclude
Waterways across the United States are markedly cleaner though half still fall short of national goals. Recent decisions, though, could lead to backsliding. 
The E.P.A. has suspended the Obama-era Waters of the United States rules, which sought to clarify which waters are considered part of the national water system...
Air and water is a lot cleaner than in the 1970s, a huge and praiseworthy accomplishment of environmental law and regulation.  But that does not mean every current action of the EPA is "progress," and any criticism is "Backsliding."

All the Times offers a reader is a simple morality play of "progress" vs. evil forces of reaction. If you have doubts about the Waters of the United States rules, which basically put every mud-puddle under federal control, then you must be part of a cabal who wants to "backslide" us all the way to rivers that burn. And likely bought off by nefarious corporate interests.

Not even the article title is right. The Waters of the United States is a rule, not a law. The law gave the EPA authority over "navigable waters." The EPA decided to interpret that rather broadly to put it mildly. Your kitchen sink is connected to navigable waters too. And your kitchen sink is not unregulated. States forbid you to throw motor oil down the kitchen sink, so the issue is federal preemption of state regulation -- which can cut both ways, forbidding states to impose higher standards. (Politico's coverage, the first that came up in a google search, was actually pretty good on covering both sides.)

Anyway, you can see there are subtle procedural issues here. Did the EPA exceed its legal authority over "navigable waters?"  The house thought so and passed an over ride of the rule. Should, as politico mentioned, federal environmental impact review be triggered every time a farmer drains a mud puddle? Maybe. Should you be able to file environmental suits to stop your neighbors from construction projects you don't like, as Epstein bemoans?

These are the tough questions in a democracy, which you do not learn from the Times' simple morality tale.

In the New Yorker, ground zero of Trumpoplexy,  Margret Talbot finished her  long attack on Scott Pruitt (yes, I read the New Yorker, and yes, I often actually finish articles) with
"One of the engineers said that it might take a while to “rebuild capacity” after Pruitt. But it would be done. The public, he reminded everyone, “is expecting us to protect the planet.” He said, “Pruitt is a temporary interloper. We are the real agency."
My jaw dropped. No, I am not making this up. This is not fake news from some alt-Right website. Here's a screenshot.

Nor was it at all ironic. Ms. Talbot clearly meant this to reassure us that everything will be ok.

In case I have to pound you over the head with it, this is exactly the kind of bureaucratic obstructionism that those who bemoan the "deep state" point to.

This would not be so ironic if it were not so blatantly hypocritical. The New York Times and the New Yorker are also ground zero for authoritarian alarmism -- Trump is trampling democracy, checks and balances, he is the new Mussolini. Yet notice here who is for democracy and who is against it.

Democracy worries that unchecked power -- the power to write laws (regulations are laws), interpret them after the fact, impose large fines and jail sentences, hear appeals to such judgments, and to set standards on which citizens can sue each other and block each other's affairs --  must be constrained by judicial review, congressional review, and the ballot box. If those get it wrong at times, so be it. Democracy was never about superb technocratic competence (!) Democracy is a last ditch safeguard against little tyrants run amok. And large ones.

Democracy is not about what is the right answer and then ram it down their throats. Democracy is  about the subtle question of who shall decide that answer and how.

If the New Yorker and New York Times were honest, they would write that in their view, the environment (along with about 50 other issues) is so important that democracy must be abolished. If deplorable yahoos vote in a president who clearly campaigned on a regulatory roll back, and then appoints agency heads who do exactly that, then the president's power -- the electorate's power -- to change the nature of regulation must be abolished. Likewise if the same deplorable yahoos vote in a Congress who passes a law countermanding the agencies action. Hooray for the agency that can obstruct these efforts and fight on! (It will be interesting to see their attitude when Trump appointees at, say, the CFPB, similarly resist President Elizabeth Warren's reforms.)  The right of people to even express contrary views is dubious in the quest for "progress." Just who decides what news is "fake" will soon be up for grabs.

That would be honest, and a fair description of their position. Authoritarians have made similar arguments through the ages. China makes it today. Democracy is too messy, the wrong people can take power.

Let's just be clear who is making the authoritarian argument, and who the democratic one. And this predates Trump by decades.

Let us indeed celebrate the remarkable improvement in the environment in America. And let us hope that the anti-democratic forces among us do not succeed in their effort at such over-reach that the whole edifice loses its bipartisan credibility and comes tumbling down, or the nation screeches to a halt.

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