The Constitutional Case for the EPA

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There has been a lot of attention around President Trump’s director of the Environmental Protection Agency (EPA), Scott Pruitt. It was clear when Pruitt was appointed that the Trump administration was not taking environmental protection seriously. Pruitt has proved this assumption right by spending taxpayer money frivolously as well as using his post to help his wife find a job. While the Obama administration took the EPA’s responsibilities more seriously than this administration, it had its own share of failures, including taking 10 months to act on information that the city of Flint was not properly treating its water to prevent toxic lead contamination. The EPA has needed better direction for a long time. Let’s explore why that is so important.

The EPA was founded in 1970 to protect Americans from the the effects of pollution. Environmental damage is one of the most important negative externalities for societies to address. The EPA is one of the easiest government agencies to make a case for because it protects both public health and private property from threats that are widespread and often concealed.

Often the argument against federal agencies is that their authority is not specified in the Constitution and is not based on the founding principles of the United States. Another popular argument is that federal agencies are not needed because the market works out solutions to problems. These arguments are made quite convincingly by Austrian school economists like Murray Rothbard and libertarian politicians like Congressman Ron Paul. However, it is notable that Rep. Paul, a strict constitutionalist, laissez faire economist, and global warming skeptic, did not include the EPA in the list of five government agencies he said he would ax in his 2012 presidential campaign. Why did “Dr. No” say “yes” the EPA?

The EPA is one of the easiest federal agencies to defend in terms of constitutionality. By the time of its establishment in 1970, it was clear that human-caused pollution could reach scales massive enough to affect large areas of the environment. Air pollution, water contamination, water shortages, flooding, and climate change cause destruction of property, injury, illness, and death with no regard for state lines. Interstate threats to life, liberty, and property are exactly what the federal government was designed to handle. Corporations have eventually showed some ability to self-regulate against some of these issues, but they have been slow to do so. Polluters are notorious for slow, half-hearted responses that are good examples of the market failures that regulations are designed to combat. Rather than wait for corporations to cave to public pressure and clean up their messes, the EPA strives to prevent those disasters from happening in the first place. They create and enforce regulations like setting standards for air quality and even conduct some of the research that those regulations are based on.

It is easy to argue that the federal government is too large and bureaucratic and that regulations are excessive. Congress has become more and more cavalier in its interpretation of the Constitution over the years. Many of their massive bills and the arguments that supported them have shown little regard in particular for the Tenth Amendment, which states, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The U.S. Code has 54 titles subdivided into thousands of subtitles and chapters. The constitutionality of many of those tens of thousands of laws and regulations is probably a stretch, and many could be adequately managed at the state or local level instead. That being said, environmental protection seeks, as the Constitution does, “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” It is exactly the type of widespread problem that the Founders intended the federal government to handle.

The EPA is constitutional. It protects the air we breath, the water we drink, the land we own and live on, and the ecosystems that life depends on for survival. Instead of arguing about whether or not environmental regulation is too burdensome, we should seek ways to make it both more effective and less burdensome. For example, we could end blanket government subsidies to corporations and industries that pollute and instead offer grants that help farmers and corporations meet expensive environmental standards.

Public opinion of the EPA is poor right now, and it should be, but it doesn’t have to stay that way. Americans need to demand better leadership in Congress and at the EPA so that it can fulfill its role of protecting our life, liberty, and property.

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