Illegitimate Expansion of Federal Executive Regulatory Authority Through Vague Reinterpretation

The subject of this comment is a proposed rule that will vastly increase federal jurisdiction over property owners by altering the definition of “waters of the United States” under the Clean Water Act (CWA). The agencies purport to increase predictability and consistency through the proposed definition. However, the prospective regulation will have the opposite effect because it: (1) adds vague and easily manipulated terms that will unnecessarily expand agency jurisdiction, (2) sidesteps Supreme Court precedent, (3) is based upon an incomplete scientific report, and (4) relies on a deficient economic analysis. We have concerns with the proposed redefinition and expansion of the scope of federal power under the Clean Water Act (CWA). We strongly suggest that the proposed rule be withdrawn and that your agencies address the legal, economic, and scientific deficiencies of the proposed rule before it is reissued for public comment.

Issue Areas:

Limited Government

Case:

Comment to the U.S. Environmental Protection Agency and the Army Corps of Engineers concerning “Proposed Definition of ‘Waters of the United States’ Under the Clean Water Act,” 40 CFR 230.3.

Read the Amicus Brief:
Question(s) Presented:

Is there any legitimate scientific, economic, and precedent backed reason for expanding the jurisdiction of the executive agencies through their constitutionally vague reinterpretation of the Clean Water Act?


Additional Background:

Without explanation, the proposed rule unceremoniously, and without sufficient basis, disposes of Justice Scalia’s plurality opinion in Rapanos v. United States and Carabell v. United States, 547 U.S. 715 (2006), in favor of the nebulous “significant nexus” test found in Justice Kennedy’s concurrence. 

The proposed rule is based extensively upon a scientific analysis entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (the “EPA Report”). However, this Report has not yet been properly peer reviewed by the Science Advisory Board (SAB).

 

ALF’s Amicus Brief:

In a comment to the EPA and USACE the ALF argues that their proposed rule change is unconstitutionally vague and will expand the federal regulatory authority beyond the language and intent of Congress in the CWA. Both Congress and the Supreme Court have repeatedly rejected attempts to expand federal regulatory authority that would have achieved similar ends as this rule reinterpretation effectuates. Further there is no scientific basis or sound economic argument to be made in favor of the rule change. Regulatory expansions, like taxes, create deadweight loss in the economy, and should originate in Congress through the elected representatives of the American people who are burdened by them, and not created through ambiguous reinterpretations of existing schemes by unelected members of the executive branch. The Foundation asks that this proposed rule be withdrawn.

Date Originally Posted: November 12, 2014

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