by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef’s latest column for Forbes examines the latest monstrosity from the U.S. Environmental Protection Agency.
When Congress passed the Clean Water Act in 1972, it was exercising its power to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” If a body of water could be used to transport goods from one state to another, it was covered by the Act.
Like so many other statutes enacted over the last 80 years – that is, since the advent of the administrative state under FDR – the Clean Water Act (CWA) depends on bureaucratic interpretation and enforcement.
The two entities involved with the CWA are the Environmental Protection Agency and the Army Corps of Engineers. Both have tried to expand the scope of their regulatory power by issuing rules that defined “navigable waters” so broadly that they have (or at least claim to have) authority over many bodies of water that couldn’t possibly be used to transport so much as a paper clip between states.
Twice, the Supreme Court has slapped down rules that amounted to a rewriting of the law to suit the zealous regulators. …
… A crucial point here: When regulators lose court cases, it does not hurt them. Sure, they’re probably angry at being told “no” but that’s it. There are no penalties for grabbing unwarranted power and mistreating citizens. An adverse court decision, or even a series of them, has no deterrent effect.
So it is not surprising that the EPA and Army Corps recently proposed a new rule defining “navigable waters” that, amazingly, actually goes far beyond its previous misbegotten efforts.