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Can Any Branch of Government Oversee the EPA?

I bemoaned in an earlier post the fact that congressional oversight of the Environmental Protection Agency is undermined by the agency’s lies. But I was too easy on Congress. To be sure, EPA’s actions are an affront to the rule of law, and the agency therefore merits much blame. Nonetheless, it is true that Congress lets the agency get away with this nonsense.

As I explained in a previous post:

A foundational principle behind the structure of the U.S. government, as provided by the Constitution, is that human beings are power hungry. In separating the powers inherent to government and also empowering each branch with checks over the other, the Founding Fathers’ idea was to counteract ambition with ambition, and thereby keep any one of the three branches from gaining ascendancy over the others.

It’s a great idea. And heretofore, it’s worked pretty well. Congress, the Presidency, and the Judiciary historically have sought to protect their respective turfs … until recently. In particular, Congress has abandoned institutional pride.

There are a number of reasons for this, but the centralization of party power and blind party loyalties are the main culprits. During the birth and rise of the modern administrative state, congressional committees exercised a great deal of independent control. This independence encouraged vigorous oversight of the federal agencies that fell under committee jurisdiction. Such oversight was a source of power, and, just as the Founding Fathers planned, members of Congress could (then) be counted on to desire power. The perfect example is the great John Dingell, a man with whom I mostly disagree, but for whom I harbor a great deal of respect. In the early 1980s, he ran the House Energy and Commerce Committee like a medieval fiefdom. There was no jurisdiction he did not covet. Indeed, there were a number of such fiefdoms, and each mini-baron cared deeply about the agencies within his or her purview.

It’s not so anymore. Political parties have centralized control over both chambers of Congress. Members of the party leadership in both houses call the shots now. Committee leaders have been disempowered, which has led to a disengagement by the committees from effective oversight. There’s no real power in it anymore.

Yet an even more consequential factor in the downfall of Congress’s self-respect is partisanship. For reasons I do not comprehend, members of Congress now give priority to their political party over their own institution. If a Republican is in charge, congressional Republicans do not care about presidential aggrandizement (see, War on Terror). If a Democrat is in charge, then congressional Democrats similarly do not care about presidential aggrandizement (see, Phone and Pen). And given the parliamentary means available, in addition to the weakening of committees in general, it is easy for the minority party to neutralize any effective oversight by the majority party, even when the presidency and the Congress are controlled by different parties.

The result of Congress’s abandonment of its institutional pride is that there’s no longer a unified will among lawmakers to call out the EPA for its bald-faced lies. To put it another way, Representatives and Senators, as a whole, let the EPA walk all over Congress.

But it’s worse than that, alas! For the judiciary has gutted its own capacity for meaningful judicial review of agency action by having adopted obsequious deference doctrines for questions of law and fact. When it comes to administrative law, it is emphatically not the role of judges to say what the law is; instead, executive agencies are permitted to expansively interpret their own organic statutes and thereby expand their own power.

To recap: Federal regulatory agencies have escaped effective oversight from the Congress and the courts.

Hold on to your seats, because it actually gets worse than that. With the coming of a President Trump, there is a reported possibility of bureaucratic dissent. For background on the nuts and bolts of the matter, see this smart but dangerous post at Notice & Comment by Prof. Jennifer Nou, which catalogues the “levers of resistance are available to civil servants.”

There are burgeoning signs that federal employees at the EPA are giving thought to resisting the policies of incoming EPA Administrator Scott Pruitt. An article in the Christian Science Monitor by Zack Colman about the “15,000 counterweights” to Trump at the EPA includes a supportive quote from an anonymous EPA employee. According to reporting by the Washington Examiner’s John Siciliano, outgoing Sen. Barbara Boxer (D-CA) “urge[d] EPA to resist Trump. A recent Wall Street Journal editorial by Kim Strassel reports that the EPA transition team is being stonewalled by existing staff whose duty it is to cooperate.

If these reports come to fruition, we’re entering into a scary place. Already, I’ve explained how two branches of government have forfeited oversight of EPA. Now, we have the prospect that not even the Executive can control an executive agency. This will be an important question over the next four years—i.e., is EPA trying to escape the bounds of all three branches of government—Articles I, II, and III?