Why can’t Congress stop the EPA’s assault on private property rights?

Karl Marx wrote that, “The theory of the communists may be summed up in the single sentence: Abolition of private property.

The Environmental Protection Agency’s (EPA) “Waters of the United States” regulation may not be the abolishment of private property rights that Marx had in mind, but it’s one heck of a start.

Before chalking this off as an exaggeration, let’s rehash the breadth of EPA’s rule.

{mosads}First, all tributaries, loosely defined as anything with a “bed and banks and ordinary high water mark” (OHWM), are categorically included under the definition of “Waters of the United States” and, thus, subject to regulation. This definition not only ignores the historic understanding of Waters of the United States as generally confined to navigable and interstate waters — although somewhat broadened by the U.S. Supreme Court to also encompass certain adjacent waters — but it is nearly all-encompassing, if this definition is to be interpreted literally. Common ditches and less can easily meet this definition. Moreover, even if the EPA were to depart from habit and restrain its regulatory ambitions, there is nothing to prevent third-party lawsuits from forcing the implementation of the rule to its maximum application. Therefore, any land except that which is perfectly flat can easily fall under the EPA’s rule and therefore the civil and criminal penalties sanctioned under that statute.

Second, while certain waters that are adjacent to what are widely accepted as navigable and interstate waters do fall under the EPA’s regulatory reach according to the Supreme Court, the EPA’s rule stretches the definition of “adjacent” far beyond what the court had in mind when it ruled that an abutting wetland could be subject to federal regulation under the Clean Water Act. The EPA’s rule defines “adjacent” as anything “bordering, neighboring or contiguous,” and further stretches these terms to encompass whole flood plains and riparian areas. Meanwhile, by executive order, the administration has separately sought to significantly expand the definition of what constitutes a flood plain.

Finally, a significant nexus test is to be applied in cases where the water in question is not otherwise roped-in under federal regulation on account of its categorical inclusion as a tributary or due to the adjacency rule. This is so even though the significant nexus test, articulated by Supreme Court Justice Anthony Kennedy, was meant to be applied to all waters over which EPA sought jurisdiction to the extent that such waters are neither navigable nor interstate in nature. The EPA was supposed to demonstrate some ecological connection between the water or waters it seeks to regulate and a water commonly understood and accepted as a regulated water. By excusing tributaries and adjacent waters from meeting this test, two things are accomplished. First, the significant nexus test is generally evaded. And, second, through this evasion, which vastly expands what constitutes Waters of the United States, the significant nexus test can easily be employed to rope in even more remote waters that the court specifically meant to exclude.

The new rule is so all-encompassing that it is essentially the Migratory Bird Rule by another name. That 1986 EPA rule, which generally regulated any water where a migratory bird might land, was struck down by the Supreme Court as having exceeded statutory authority. The crux of the matter, then, is that after two rebukes from the Supreme Court and at least 26 years of trying to legislatively overturn these legal setbacks through bills that would have significantly broadened the Clean Water Act’s reach, EPA simply decided to ignore the long and widely recognized limitations under the current law and unilaterally move forward with an extralegal regulation. In one fell swoop, the EPA gave itself the legal authority it knew it did not have but had sought to obtain under bills that were introduced in 1991, 1993, 2001, 2003, 2007 and 2010 but which had gone nowhere.

In short, the EPA’s process was underhanded, its actions are illegal and the consequences for private property rights are serious.

This is why lawmakers have worked so persistently to block the Waters of the United States regulation, in the context of standalone legislation and disapproval resolutions, as well as riders on appropriations bills.

Unfortunately, these efforts have thus far proved unsuccessful, with standalone bills and resolutions with clear majority support in both chambers either falling short of the 60-vote threshold in the Senate or otherwise passing both chambers but meeting with a veto pen when it landed on the president’s desk.

Some take solace in the Sixth Circuit Court of Appeals’ temporary injunction blocking the rule. But a temporary injunction is just that: temporary. How the Sixth Circuit ultimately comes down on the merits of the case is uncertain. How the Supreme Court would come down, however, is less of a mystery. An evenly split court is the best private property rights can hope for, with four justices already on record as having taken a very expansive view of the EPA’s authority under the Clean Water Act, and with at least one of these justices opining that current authority actually extends to the outer reaches of the Commerce Clause, which is legalese for “the sky is the limit.”

This means that the appropriations process may well be the only way to ensure that the EPA’s federal land grab is successfully blocked. In fact, appropriations bills that block the EPA’s Waters of the United States regulation have been approved by both chambers.

But, where the wheels fall off in the effort to rein in the EPA in defense of private property is at the end of the appropriations process, when some members of Congress who are adamantly opposed to the Waters of the United States rule refuse to vote for the final appropriations bill that would stop the EPA regulation, therefore requiring congressional leadership to rely on the votes of members who strongly support the Waters of the United States regulation and oppose inclusion of any language to block it. Thus, protection of private property rights is thrown overboard.

It is one of life’s ironies, then, that it is perhaps those in Congress who claim to cherish private property rights the most whose actions are effectively doing these rights in. It seems to me that while there may be plenty to dislike in any appropriations bill, a vote to protect private property rights covers a lot of sins. After all, we are talking about a cornerstone of liberty.

Combest represented the 19th Congressional District of Texas from 1985 to 2002 and chaired the Select Committee on Intelligence and the Agriculture Committee. He is now a principal at Combest Sell & Associates.