NCBA Op-Ed: EPA’s regulatory overreach

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The Environmental Protection Agency (EPA), like every other governmental institution, should answer to the American people. Everyone agrees that we need to protect the environment, but we should do so in a way that is open and honest. Democracy requires transparency and accountability.

Earlier this month, EPA Administrator Gina McCarthy testified before the House Science Committee, which I chair, for the first time in her new position. The hearing provided me an opportunity to ask about what appears to be a troubling trend of rushed new rules to expand the agency’s regulatory reach across the U.S.

For example, I asked her about a new draft rule that could redefine EPA’s jurisdiction under the Clean Water Act. It expands the definition of “waters of the U.S.” to give the EPA unprecedented new authority over private property. And the agricultural sector would be particularly impacted.

An expansion of EPA’s regulatory power of this magnitude could give the agency control over almost all man-made and natural streams, lakes and ponds in the U.S. This clearly undermines states’ rights and increases federal control of private property. Few among us want to give the EPA the right to tell us what to do in our own backyards. It could give the EPA additional authority to get involved with decisions about how farmers manage their land.

Also, the EPA is rushing the approval process for this rule without thorough peer review of the supporting scientific data. This is a clear attempt to fast-track the approval process for a rule with far-reaching implications.

But perhaps the most worrisome examples of the agency’s disregard for transparency and accountability are found in the EPA’s clean air program. We all agree that ensuring clean air is essential, but the EPA has a responsibility to establish rules that balance our environmental concerns and our economic needs.

Nearly all of the Obama administration’s air quality regulations are justified on the basis of data that are hidden from the public. These regulations cost billions of dollars but the EPA claims that the benefits justify the costs. These claims can’t be verified if the EPA uses secret science.

More than two years ago, then-Assistant Administrator McCarthy said this information would be made available for independent review and verification. And a few months ago, the President’s own Science Advisor agreed.

When the EPA failed to live up to those commitments, the Committee in August issued a subpoena requiring the agency to produce the data. Three months later, the agency still hasn’t provided the data necessary to verify the agency’s claims. It is the EPA’s responsibility to ensure that the science it uses is transparent and that its claims can be verified independently.

Recently, the EPA provided us with copies of letters it received from scientists explaining why they believe this data cannot be released to the public. It’s unfortunate that it took us two years and a subpoena to get here, but now even the EPA knows the truth: the agency itself cannot verify its own claims. So not only do we have a lack of transparency, we have an agency that is regulating without the facts to back up its claims.

We need to know whether the EPA is telling the truth to the American people. The agency must either make the data public, or commit to no longer using secret science to support its regulations. Otherwise, Congress will have no choice but to prohibit the EPA’s use of secret data moving forward. In the next few weeks, I plan to introduce legislation that will stop the EPA from basing regulations on undisclosed and unverified information.


We can and should continue to look for ways to protect our environment. But these efforts must be open, transparent and based on sound science. Only then can the American people decide whether the costs of EPA’s regulatory agenda is supported by the facts.

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