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Brett Talley: Under Obama, EPA has become a lawless organ of federal power, divorced from Congressional statutes meant to constrain it

He says Scott Pruitt is the right choice to fix the problem

Editor’s Note: Brett J. Talley is a lawyer, author, one-time writer for Mitt Romney’s 2012 presidential campaign and former speechwriter for Sen. Rob Portman of Ohio. He is deputy solicitor general at the office of Alabama’s attorney general. The opinions expressed in this commentary are his.

(CNN) —  

Any parent who has ever disciplined children knows that no matter how hard it might be, it’s for their own good. The Environmental Protection Agency could use some discipline right about now.

During the Obama administration, the EPA became a lawless organ of federal power, divorced from the Congressional statutes that were meant to constrain it. If it is to be reformed, it will need the steady hand of someone who understands just how thoroughly it has gone astray. Enter Oklahoma Attorney General Scott Pruitt, a man who has spent the last six years pushing back on the EPA’s most egregious overreaches.

Brett Talley
PHOTO: Courtesy Brett Talley
Brett Talley

Given Pruitt’s recent role as EPA antagonizer-in-chief, it’s little wonder that some on the left have responded with howling rage to his nomination. How, they ask, can a man who has repeatedly sued the EPA now be tapped to lead it?

But even a cursory review of some of the EPA’s actions over the last few years shows that only someone who thoroughly understands why the EPA is broken can hope to fix it.

Consider the EPA’s Waters of the United States rule, a power grab that would have allowed the EPA to regulate nearly every stream and dry river bed in the country. The rule was so expansive that the EPA felt it necessary to specifically exclude from its jurisdiction the puddles that form in your front yard after a rainstorm.

Subpoenaed internal documents revealed the Army Corps of Engineers warned the EPA that the rule had “serious flaws” that rendered it “legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement.” Not only did the EPA promulgate the rule despite these warnings, it spent taxpayer dollars on what the Government Accountability Office would later call an illegal “covert propaganda” effort to sell the rule to the public.

But the EPA’s water rule was small potatoes compared to the regulation that was to be the Obama administration’s crowning environmental achievement — the Clean Power Plan. When President Obama ran for office in 2008, he vowed to implement a cap-and-trade system that would bankrupt anyone who dared to build a coal-fired power plant in the United States, a move that would lead inexorably to the end of the coal industry as a whole.

That plan died in Congress, but the dream of a coal-free America didn’t die with it.

So in August 2015, the EPA unveiled new regulations that would accomplish by executive fiat what couldn’t be accomplished through legislation. That the EPA engineered an end run around Congress should be enough to set alarm bells ringing. The agencies of the federal government have no power that has not been granted to them.

The EPA cannot decide to “fill a gap” where Congress has not seen fit to act. Otherwise, we no longer live in a representative democracy, but rather an oligarchy of agency bureaucrats.

Fortunately, EPA overreach did not go unnoticed or unchallenged. A coalition of state attorneys general, including Scott Pruitt, took the EPA to court. I know those efforts well; in my role as Deputy Solicitor General, part of my job is to coordinate Alabama’s participation in these lawsuits. So far, we’ve been successful. The Sixth Circuit Court of Appeals issued a nationwide stay of EPA’s Waters of the United States Rule. And the Supreme Court, in one of Justice Scalia’s last official acts, granted a similar stay of the Clean Power Plan.

These were high-profile setbacks for the EPA, and the agency’s failure to adhere to the rule of law cost untold taxpayer dollars and wasted thousands of manhours expended by EPA scientists, lawyers, and staff. If the EPA is to successfully pursue its important mission, something has to change. And who better to restore the EPA’s adherence to the law than a man who has beaten it in court?

Rather than attempt to answer that question, Pruitt’s opponents have resorted to character assassination, pulling out one of the biggest guns in their arsenal. Pruitt, they claim, is a climate change denier, which in environmentalist circles is akin to being branded a witch or a high heretic. In the old days, Pruitt would be in danger of being burned at the stake — were it not for the carbon emissions.

What is the basis for this charge? Pruitt recently published an op-ed in which he argued other attorneys general shouldn’t use their prosecutorial powers to silence skeptics of climate change, calling instead for open debate about the “degree and extent of global warming and its connection to the actions of mankind.” That op-ed neatly sums up Pruitt’s position on climate change: debate on the causes and consequences of global warming — and what if anything we should do about it — should be encouraged rather than silenced.

But in the eyes of his critics, that position is akin to claiming the earth is flat. And along with his willingness to hold the EPA accountable to the law, it is enough to vigorously oppose him.

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Given the weak case against him, it is imperative that Republicans in the Senate rally to Pruitt’s cause. They cannot allow his nomination to be scuttled because of his adherence to the rule of law and his assertion that free people in a free country should be able to challenge climate change dogma without fear of prosecution.

And while Pruitt’s enemies would never admit it, in the long run his confirmation would be good for the environment. Under his stewardship, the EPA can begin to implement policies that adhere to the mission of the agency and, just as importantly, can stand up in court.

What a welcome change that would be.