More than 40 years ago, Washington’s Sen. Henry M. “Scoop” Jackson authored the National Environmental Policy Act, which led to the creation of the Environmental Protection Agency.
When President Richard Nixon signed the landmark legislation into law on Jan. 1, 1970, he installed Bill Ruckelshaus as the first EPA administrator to implement the new statute and begin aggressively cleaning up the nation’s air, water and hazardous waste sites.
Unfortunately, over the decades, things have changed. Today, EPA’s tendency is to operate above the law. The attitude is “if you don’t like our rules and think we are breaking the law, sue us!”
That is exactly what Ohio, Michigan and 16 other states did. A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled two-to-one against EPA, stopping its new clean water rule on grounds that it likely exceeds the agency’s legal authority.
The original Clean Water Act gave EPA jurisdiction over discharges into “navigable waters.” In a 1989 lawsuit, the U.S. Supreme Court ruled against the EPA’s attempt to regulate wetlands 20 miles from the nearest river, saying waters under EPA’s jurisdiction must be connected to navigable waters. But the court did not define “connected.”
Over the last 26 years, the EPA has been gradually expanding its definition of “connected” — and broadening its regulatory reach as a result.
EPA’s latest rule empowered the U.S. Army Corps of Engineers and EPA to micromanage any creek, pond or prairie pothole with a “significant nexus” to a navigable waterway.
EPA claimed jurisdiction over any land within a 100-year floodplain and 1,500 feet of the high-water mark or, alternatively, within the 100-year floodplain and 4,000 feet of waters.
Effectively, the federal agency’s action usurped the state’s authority over tens of millions of acres of private land.
Scoop Jackson would be appalled by that power grab. He believed that federal agencies, including EPA, should follow the law and that their rules should be solidly grounded in the law.
That was especially important to Everett, Jackson’s hometown, where lumber and paper mills were the economic engine. The forest industry, which has been the focus of state and federal environmental cleanup efforts, continues to be key to Washington’s economy.
I came in contact with Jackson when I was employed by Crown Zellerbach, a major international paper producer.
My job was to help with the massive permitting effort at the Camas mill. The mill was over a century old and the choice was either to close or modernize. Closing would result in laying off its 3,000 workers.
Starting in 1978, CZ invested $425 million to install new environmental safeguards — an investment Crown could ill-afford during a period of double-digit unemployment, interest rates and inflation. Over half of the money was spent on eliminating contaminants from the air and water.
Jackson kept an eye on the modernization and the progress of the permitting. He believed if the law wasn’t strong enough and not working, Congress should put more teeth in it — not EPA.
The effort was a success. The Camas mill, now owned by Georgia-Pacific, is still one of the largest pulp and paper mills in the region.
Establishing clear, achievable environmental standards is better for America. It is not in our interest to force our industries offshore into foreign factories with weaker pollution standards. The result is American workers and local economies suffer.
Hopefully, the courts will compel EPA to follow the law, implementing what Congress determines.
Don Brunell, retired as president of the Association of Washington Business, is a business analyst, writer, and columnist. He lives in Vancouver and can be contacted at TheBrunells@msn.com.
