EPA's Mission: The Original Understanding Wasn't Cutting Regulatory Costs

Originally published on Legal Planet.

What is EPA’s mission? To what extent is minimizing regulatory costs part of the core mission, as the Trump Administration seems to believe? Does the Trump-Pruitt/Wheeler view comport with original intent? History makes it clear that the answer is “no.”

The title of the agency itself suggests that the core mission is protecting the environment, just as the core mission of the Defense Department is presumably national defense (though cost isn’t irrelevant in either setting). It’s worthwhile, however, to take a closer look at the marching orders given to the agency when it was formed. As it turns out, we do have clear evidence of what Congress and the President had in mind.

EPA wasn’t established by a statute. It was established through a special process that no longer exists for government reorganization, which allowed the President to pull units out of existing parts of the government and put them together in a new agency. The process was initiated through an executive order by President Nixon.

In explaining his plan in a message to Congress, President Nixon said that “Our national government today is not structured to make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food. Indeed, the present governmental structure for dealing with environmental pollution often defies effective and concerted action.” His message explained that the “principal aims” of EPA would be as follows:

• “The establishment and enforcement of environmental protection standards consistent with national environmental goals.
• “The conduct of research on the adverse effects of pollution and on methods and equipment for controlling it, the gathering of information on pollution, and the use of this information in strengthening environmental protection programs and recommending policy changes.
• “Assisting others, through grants, technical assistance and other means in arresting pollution of the environment.
• “Assisting the Council on Environmental Quality in developing and recommending to the President new policies for the protection of the environment.”

Note that the emphasis on “controlling” and “arresting” pollution, along with two general references to “protection” of the environment. Elsewhere, to be fair, there’s a mention of “developing” the environment, but that’s far from being the emphasis.

Nixon’s view of the agency’s mission is also reflected in EPA’s official seal, which he mandated to include “a flower with a bloom which is symbolic of all the elements of the environment. The bloom is a sphere, the component parts of which represent the blue sky, green earth, and blue-green water. A white circle within the sphere denotes either the sun or the moon. All are symbolic of a clean environment.” Nixon didn’t include a dollar sign in the seal.

Those were the President’s views. What about Congress? The Reorganization Act (no longer on the books) allowed Congress to approve or disapprove the reorganization. Republican leaders in Congress made it clear that they shared the President’s views. In the House, Minority Leader Gerald Ford (R-MI) (who would replace Nixon as President) said that “we need a strong independent agency to oversee the protection of the environment.” And in the Senate, Howard Baker (R-TN) stressed that “we must commit ourselves as individuals and as a nation, to restoring the quality of our environment.”

The first director of EPA was also a Republican, William Ruckelshaus. Here’s what he had to say about agency’s mission in his first press release: “EPA is an independent agency. It has no obligation to promote agriculture or commerce; only the critical obligation to protect and enhance the environment. It does not have a narrow charter to deal with only one aspect of a deteriorating environment; rather it has a broad responsibility for research, standard-setting, monitoring and enforcement with regard to five environmental hazards; air and water pollution, solid waste disposal, radiation, and pesticides.”

Of course, EPA does not have an open license to pursue environmental protection in whatever way it wants. Congress has passed hundreds of pages of statutes dealing with different forms of pollution, instructing EPA on how to move forward. Cost is almost always a factor under these statutes, but it is almost never paramount. It is remarkable that conservatives, who claim to believe in a jurisprudence of original intent, are so willing to cast aside the original understanding of EPA’s mission.