Administrative State Idealism Vs. The Real World


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Getting a grip on the “regulatory mill” controlled by the Administrative State (AS) is essential to removing barriers to growth and reinvestment in the private sector.  The relationship between the growth in governmental regulations and the growth of private enterprise activity is known to be inverse.  Simply stated, private sector activity is negatively affected by the expansion of regulations.  There are many laws and, accordingly, a plethora of regulations that citizens and businesses must comply with.  The costs in time and money to comply with these AS burdens can be very dear in time and treasure.

We’ve read about the power and pervasiveness of the AS and how agencies of the federal government have taken on the task of translating laws passed by Congress into regulatory vernacular, targeted toward those whose actions are being regulated. Obviously, some entity has to synthesize a body of regulatory language that speaks clearly to the regulated community about the things it must do and the things it must avoid doing in order to ensure it will remain in compliance with one or more regulations.

In the interest of brevity and clarity, this paper will zero in on a single area of environmental law, the Clean Water Act (CWA).  The reader should understand that the CWA is a single, although extremely important, federal law which has spawned a large body of regulation.  Its purpose is to protect Waters of the U.S., the collective body of aquatic resources identified in the CWA regulatory documentation.  These waters include streams, rivers, wetlands and other categories of aquatic resources that have been determined to be important to the nation’s drinking water supply, agriculture, forestry, healthy aquatic ecosystems, water transportation, wildlife, etc.

If you are a small landowner and you need to build an outbuilding, a farmer who must convert some forested land into pasture to feed his cattle, or a large corporation who develops residential communities, or commercial-industrial sites, you will routinely be subjected to CWA regulation if your proposed actions would impact streams, wetlands, or other Waters of the U.S. The complexity and breadth of the regulatory reach will initially startle you and then it will require you to spend a significant amount of time and treasure complying with its rules.

There can be significant conflicts between defining and balancing the needs of a free enterprise system and maintaining the integrity of a stream or natural ecosystem. The needs of wildlife, fish and ecosystems, and the needs of human enterprises are often vastly different; however, generally speaking, they are equal in importance and in this equality of importance the wise and clear-headed bureaucrat should be obligated to design its regulatory processes in a way that continuity is assured for both systems.

Lets use the environmental regulatory community as a model for understanding some of the issues faced by private enterprise applicants.  This community is broad and deep.  The EPA is the “mother ship”, which has delegated day-to-day operational tasks, including field reviews and jurisdictional determinations to the U.S. Army Corps of Engineers.  However, there is an army of environmental and natural resource agencies (federal, state and NGO), which submit written comments to the permitting agencies and attend meetings, including field reviews during the permit application process.  Some of these auxiliary agencies are also regulatory since they also issue permits, or other authorizations, such as Section 401 Water Quality Certifications (virtually everyone will need one of these from their state water quality agency) and Coastal Zone Management Act permits (for projects located in the coastal counties), but most are non-regulatory.  T  For example, any application for a Clean Water Act permit is routinely circulated to the U.S. Fish and Wildlife Service, the state Wildlife Agency, The State water Quality agency and other agencies, depending on the project’s geography and other jurisdictional issues.  If the proposal will occur within the coastal zone, for example, the application will be circulated to the National Marine Fisheries Service, the state coastal zone management agency and possibly the U.S. Coast Guard, depending on specific jurisdictional issues involved.  This is a conservative list of interagency involvement.

Now it is not difficult to predict that many (maybe most) of the employees of these regulatory and commenting agencies tend to be environmental advocates, who, at a personal level, may oppose actions they believe would bring harm to clean, unspoiled ecosystems.   After many years’ experience with these regulators, I am lead to characterize them as idealists, and their interagency alliances as a GroupThink laboratory.  These dedicated ecological warriors aren’t likely to spend much time worrying about how difficult it is to start a business, to make it successful and to keep it afloat during tough economic times.  They don’t have the broad focus of understanding and appreciation of issues beyond their myopic view of the “waterfront”.

No matter how successful these environmental advocates are in protecting and preserving Waters of the U.S. and other important natural resources, it is inexcusable for them to disregard the impact of their idealistic stewardship on the applicants’ bread and butter.  This is often the hidden flaw in the product of environmental zealotry.  Protecting Mother Earth from relatively insignificant harm, while hamstringing the national economy and productivity.  Growth of the U.S. economy, including job growth and prosperity for its citizens should be seen as a desirable goal by all citizens.  Every dollar spent and every hour invested in efforts to avoid and minimize impacts to important natural resources should be time and money well-spent!

A clean, even pristine environment is achievable even if compromises are made in environmental regulation and enforcement.  Intelligent compromises can reduce the restrictive costs and punitive regulatory requirements that individuals and businesses must contend with.  An example of how to retune the balance between aquatic environment protection and private sector development would be to reevaluate the way Waters of the U.S. are treated by the CWA.  For example, there is no attempt to discriminate among the various categories of Waters of the U.S.  If something is defined as a wetland, it is given the full protection of the CWA.  It turns out there are wetlands most scientists would agree are worth protecting with the full force of the law and there are other wetlands where consensus would support a less extreme form of protection.   This is significant because there are regions of the country where, arguably, less valuable wetlands occupy hundreds to thousands of acres of the landscape.

While this is only a single example of how the regulatory process could be tweaked to moderate its implications to private enterprise development activities, there are dozens and dozens of other examples of how the regulatory juggernaut could be changed to one that is less idealistic and more pragmatic.

Randall Turner is a semi-retired biologist with numerous publications in the scientific literature.