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More Anxiety over White House Budget for EPA

In late February, the White House’s budget outline leaked, and I worried that it lacked a requisite thoughtfulness:

By all accounts, the Office of Management and Budget consulted neither Congress nor the states in the course of formulating these proposals …

By failing to consult Congress, OMB doesn’t seem to have considered the EPA’s statutory duties. As I’ve before argued, the agency is beholden to thousands of duties set forth by Congress in EPA’s enabling statutes, and it is unclear whether the agency has sufficient resources to achieve these non-discretionary responsibilities.

And by failing to consult states, OMB doesn’t seem to have considered cooperative federalism. Congress intends for states and the federal government to work together to mitigate air and water pollution. Under this regulatory arrangement, which is known as cooperative federalism, states do most of the work. According to ECOS, states pay for 90 percent of the implementation of federal environmental laws. However, the federal government does contribute to the remainder in the form of grants, of which some are included in the proposed cuts. As such, it is unclear whether OMB’s proposed budget cuts create unfunded mandates for states …

I agree with the spirit behind the cuts, but I’m concerned by signs that this effort was poorly thought out … Governing is tough, and to do it well requires preparation. I’m not advocating for endless and sclerotic planning; rather, I’m expressing my fear that these budget cuts lack a requisite thoughtfulness.

Last week, the White House released its final budget outline, and my reaction is a mix of hope and concern.

I’m hopeful because the Budget Blueprint indicates that the agency is returning to its core responsibilities. As I explained last Friday in the Washington Examiner, climate change has usurped conventional air pollution as the Environmental Protection Agency’s first priority over the last two presidential administrations. This refocus is a problem because Congress assigned the EPA thousands of non-discretionary duties to mitigate conventional air pollution, and the agency has been ignoring these statutory responsibilities to freelance on the climate, which arguably is a violation of the president’s constitutional obligation to faithfully execute the laws. In this context, I welcome the budget outline’s proposal to slash appropriations for the EPA's climate programs and instead “reorient[] EPA’s air program to protect the air we breathe.” From this statement, it is safe to infer that President Trump intends to refocus the agency on doing its job as intended by Congress.

However, many of my concerns remain. There is very little detail in the “skinny budget,” so I cannot tell if the spending cuts create unfunded mandates for the states. On the one hand, the budget outline states that “[t]his funding level eliminates or substantially reduces Federal investment in State environmental activities that go beyond EPA’s statutory requirements,” which suggests to me that the OMB sought to avoid creating new funding responsibilities for states pursuant to existing environmental laws. On the other hand, I know there is worry among state air quality agencies in right-of-center states about the possibility of being treated inequitably. I’m disappointed this uncertainty is in the air, because I believe a thoughtful approach would have been to consult with the states and keep them in the loop.

Similarly, I’m discouraged by reporting that OMB is spurning Congress. According to an insightful report by E&E Daily’s George Cahlink & Geof Koss:

Lawmakers are expressing frustration with a White House move to severely restrict agencies from sharing budget information with Congress, including details of proposed environmental and energy spending cuts.

Office of Management and Budget Director Mick Mulvaney sent a letter late last week to department and agency leaders saying any public comments on fiscal 2018 spending should be “limited” to what was said in a broad, 53-page budget outline released last week.

Additionally, he said the administration would prefer that only department or agency heads appear before Congress to testify on the spending plan.

As a result, lawmakers are waiting to hear how the administration plans to eliminate more than 3,000 jobs at U.S. EPA, cut the Interior by 11 percent and slash the Department of Energy by more than 5 percent.

Rep. Hal Rogers (R-Ky.), chairman of the State, Foreign Operations and Related Programs Appropriations Subcommittee, said “of course” when asked whether the delay would hurt the prospects for getting spending bills in place by the time the new fiscal year begins Oct. 1.

“We depend on those agencies to tell us and justify the budget requests, but since the budget apparently won’t be here for a while, it does severely limit our options,” said Rogers, who used to lead the full panel.

Other Republicans offered similar sentiments, saying the administration should provide at least some additional details before May.

The administration’s radio silence to Congress makes no sense to me. At the end of the day, it is Congress’s budget. Whatever the administration hopes to accomplish with its budget, it must work with Congress. As stated above, I welcome the administration’s apparent focus to re-orient the EPA towards its core duties—i.e., executing the law instead of freelancing on climate; however, implementing this goal requires congressional collaboration. That is, the EPA, OMB, and relevant Congressional committees must do the hard work of calculating how much money the agency needs to meet its statutory duties, and then budget the EPA accordingly. And this hard work can begin only when the Trump administration reaches out to Congress. By not having done so to date, and potentially alienating allies, the administration has made its goals much more difficult to achieve.