The past several years of Greg Abbott's political career have been one long, drawn-out pissing match with the U.S. Environmental Protection Agency. For an avowed tort-reformer, our Attorney General-turned GOP candidate for governor sure loves a good lawsuit when the feds are in the crosshairs, famously describing his job as AG this way: "I go into the office, I sue Barack Obama and I go home." Last month Abbott even considered suing Obama over the recent uptick in immigrant kids detained at the Texas/Mexico border, because, you know, why not?
But apparently lawsuits against the EPA are what really make Abbott's mouth water--17 of the more than two-dozen challenges Abbott has filed against the Obama Administration have targeted the EPA. So it should shock no one that early this week Abbott threatened to again sue the agency, this time over a proposed rule change clarifying that upstream water sources should be protected from pollution.
In his formal comments to the EPA Monday Abbott called the rule change an unlawful, unconstitutional land-grab that "would erode private property rights and have devastating effects on the landowners of Texas." He capped his comments telling the EPA to back down or else "the State of Texas will have no choice but to challenge the rule in federal court." Texas v. EPA, round 18?
Abbott's just the latest to wade into the decade-long fight over which streams and wetlands should qualify for protection under the Clean Water Act--something EPA hopes to finally settle with its proposed rule change (you can read all 86 pages of it here). Abbott and other critics bristle that EPA's proposal would cover some seasonal and intermittent waterways, which dry up during part of the year, if such waterways connect to a larger hydrologic system when it rains or floods.
David Foster with the advocacy group Clean Water Action cited EPA figures saying 75 percent of stream miles in Texas are intermittent or seasonal, and that those streams feed into larger rivers that provide drinking water to some 11.5 million Texans. "From our perspective, you can't protect drinking water supplies without adequately protecting your tributaries," he said. Meanwhile, reps from the Texas Farm Bureau insist the updated rule could burden farmers with unnecessary costs and delays.
For years EPA officials have worried entire watersheds that feed into drinking water sources were left unprotected due to federal court rulings that weakened enforcement efforts. In 2010, The New York Times cited midlevel EPA officials saying regulators couldn't prosecute as many as half of the nation's largest known polluters because of either a perceived lack of jurisdiction, or because jurisdiction was too time- and cost-intensive to prove under the existing rules (which would explain why EPA enforcement fell even as Clean Water Act violations rose at a steady clip between 2001 and 2008).
While the actual law hasn't changed for at least two decades, two major U.S. Supreme Court rulings effectively shrank EPA's jurisdiction over streams and wetlands, says Charles Irvine, who teaches environmental law at the University of Houston Law Center. Up until 2001, Irvine says, EPA and the Army Corps of Engineers wielded the so-called "migratory bird rule," which held that if migratory birds use a wetland, then the feds have the authority to regulate it--and since migratory birds, well, migrate, that meant many thousands of acres of wetlands were swept up under Clean Water Act jurisdiction by default. When the Supremes nixed that rule, the Association of State Wetland Managers estimated that anywhere from 30 to 60 percent of the nation's wetlands would be removed from Clean Water Act protection.
A 2006 Supreme Court ruling further muddied things, with four conservative justices limiting Clean Water Act jurisdiction to waters that are "relatively permanent, standing or continuously flowing" and wetlands that are next to such waters, while swing-vote Justice Anthony Kennedy made things a little broader (and even less clear) by saying the Clean Water Act should kick in when bodies of water have a "significant nexus" to major waterways that deserve protecting.
Whew. Got that? As Irvine puts it, EPA is now doing what it can to implement the Clean Water Act, which almost everyone agrees is now crazy ambiguous, all while trying to best protect drinking, hunting, and fishing waters, which is the whole point of the Clean Water Act.
"The rules don't change existing law," Irvine said. "The new rule wouldn't grab unlimited jurisdiction, as some are saying, because EPA still can't flagrantly ignore standing case law." As Irvine sees it, the proposed rule change is an attempt by EPA to revise regulations to incorporate previous Supreme Court decisions, all while adding some much-needed clarity to the rules.
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Speaking of clarity: the proposed change actually delineates a whole bunch of exceptions that wouldn't fall under Clean Water Act jurisdiction, such as stock tanks and many types of irrigation ditches and ponds. Plus the proposed change leaves untouched longstanding exemptions already in place for farmers and ranchers.
"That has not stopped people who have not read the rule from talking about how poor farmers' stock tanks would be subject to permitting under the proposed rule," Irvine said in an email. "Not so."
We figure that's a not-so-subtle jab at Abbott, who posted this statement on the AG website this week: "The EPA has no authority to regulate dry ditches and stock tanks of private property--but that is exactly what the Obama Administration is trying to achieve."
But then again, who actually wants a probably-governor that favors nuance over rhetoric?