WASHINGTON (Legal Newsline) - A ditch filled with rainwater in a farmer’s field is fair regulatory game for Washington under proposed Clear Water Act rules that the Biden EPA resurrected from the Obama Administration.
The Waters of the United States (WOTUS) rule, which could require a permit to fill that farmer's ditch, is no outlier among regulatory proposals by federal agencies that are hitting businesses, farmers, consumers and state and local governments with a fusillade of mind boggling and costly rules. Garnering the most publicity is a proposed ban on gas stoves.
“Congress approved over a trillion in new spending under vague legislation they called the Inflation Reduction Act, and that means the regulatory experts in the agencies have to start weighing in,” Wayne Crews, the Fred L. Smith fellow in Regulatory Studies at the Competitive Enterprise Institute (CEI), told Legal Newsline.
A proposal to bring the “locus of power,” as Crews called it, back to Congress lies in the House Republican debt ceiling plan, now part of the negotiations with the White House on raising the nation’s debt ceiling. It’s the REINS Act, Regulations from the Executive in Need of Scrutiny, and it would give Congress the authority to approve, or disapprove, proposed rules before they would have a major impact on consumers and the economy.
Congress is where the power rightfully belongs anyway, says Adrian Moore, vice president of Policy at the Reason Foundation.
“It’s not a question of whether a proposed rule is good or bad, but the real issue is, is it what Congress intended,” Moore told Legal Newsline.
In another political era, the Reins Act may have been welcomed with strong bipartisan support. Crews noted that in 1996 members of both parties in Congress approved the Congressional Review Act (CRA) as part of the Small Business Regulatory Enforcement Fairness Act.
“Unfortunately this is a much more polarized environment today,” Crews said.
But the CRA gives Congress review power only after a rule is law; it can overturn the rule with a disapproval resolution. It was used sparingly until the Trump Administration and Congress working together disapproved regulations approved by the Obama Administration. Biden then turned around and reversed many of the same rules.
Calling the REINS Act much stronger than the CRA, Moore said that it would also be more “palatable” since Congress could disapprove of a rule before it became law, and lessen the risk of political fallout.
“The only ones who are against it are those who want to see the administrative state run amok,” he added.
"Otherwise we’re left with the EPA’s labeling that the farmer’s ditch under WOTUS is a navigable waterway, and that under 1972 Clean Water Act, gives the agency jurisdiction over it."
More recently, the EPA is using the Clean Air Act to continue the administration’s war against the fossil fuel industry.
As the Wall Street Journal Editorial Board pointed out it’s another example of free wheeling with the original intent of a law.
“Section 111 of the Clean Air Act says the EPA can regulate pollutants from stationary sources through the ‘best system of emission reduction’ that is ‘adequately demonstrated,’” the editors noted. “Yet, the EPA wants to require that fossil-fuel plants adopt carbon capture and green hydrogen technologies that aren’t currently cost-effective or feasible, and may never be. Only one commercial scale coal plant in the world uses carbon capture to reduce emissions, and no gas-fired plants do.”
The proposed ban on gas stoves comes from the Consumer Product Safety Commission, whose commissioner Richard Trumka Jr. said that products the commission deemed to be unsafe can be banned. In addition, proposals by the Energy Department would make dish washers and washing machines costlier to operate.
Along those lines, the nation’s independent builders, through their national government affairs group, the Associated Builders and Contractors (ABC), are battling a provision in the Inflation Reduction Act that provides more than $369 billion in tax credits for clean energy construction projects with a bonus tax credit 500% greater than the baseline credit of 6%.
“The credit is conditioned on requirements that contractors pay Davis-Bacon prevailing wages and utilize apprentices enrolled in government-registered apprenticeship programs,” ABC said.
ABC is also trying to fight off six over-expansive, and they argue unnecessary rules, that would add costs to their business and to consumers.
In a recent commentary, Adam Brandon, president of FreedomWorks, suggested that House Republicans, in exchange for approval of the REINS Act, agree with White House and congressional Democrats to raise the debt ceiling.
He notes that Biden’s budget proposals are projecting to run between $1.5 trillion and $2 trillion in deficits each year, and the Congressional Budget Office predicts the national debt to reach more than $50 trillion by 2033.
“The REINS Act,” he wrote, “stops giving unelected bureaucrats free reign and prevents any president from burdening our nation’s economy with excessive regulatory overreach. Eliminating pointless and burdensome red tape would cool inflation and slow runaway spending.”
Otherwise, CEI’s Crews says that it might take another effort by business, farmers, local governments and others, as they did in the 90s, to descend on Washington and pressure them to stem spending and an out-of-control administrative state.
The U.S. could default on its debt payments by early June, without an agreement between House Republicans and the White House, Treasury Secretary Janet Yellen has warned.