A water rule that turns a blind eye to transboundary pollution
Abstract
Debates about the decentralization of environmental policy are important and are far from resolved (1, 2). Interregional spillovers provide one key justification for centralized regulation: When regulation is decentralized, individual jurisdictions may not protect downstream or downwind neighbors from their pollution (2, 3). Under the Trump administration, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (ACE) departed from precedent to support the deregulation of US waterways in the repeal of the 2015 Clean Water Rule (CWR) and its replacement with the 2020 Navigable Waters Protection Rule (NWPR). In doing so, they assumed (with little evidence) that many states would fill gaps in federal oversight. With the Biden administration having signaled its intent to modernize regulatory review and to review specific deregulatory actions taken by the Trump administration, we describe here how this environmental federalism approach downplays the importance of cross-state pollution and relies on flawed methods of benefit-cost analysis that could be used to weaken other statutes.
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Supplementary Material
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References and Notes
1
W. E. Oates, R. M. Schwab, J. Public Econ. 35, 333 (1988).
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H. Sigman, J. Environ. Econ. Manage. 50, 82 (2005).
4
A. Wittenberg, K. Bogardus, “EPA falsely claims ‘no data’ on waters in WOTUS rule” (E&E News, 2018); www.eenews.net/stories/1060109323.
5
S. M. P. Sullivan et al., Science 369, 766 (2020).
6
US Environmental Protection Agency and US Department of the Army, “Economic Analysis for the Final Rule: Definition of ‘Waters of the United States’—Recodification of Pre-existing Rules” (2019); www.epa.gov/sites/production/files/2019-09/documents/wotus_rin-2040-af74_final_ea_508compliant_20190905.pdf.
7
US Environmental Protection Agency and US Department of the Army, “Economic Analysis for the Navigable Waters Protection Rule: Definition of ‘Waters of the United States’” (2020); www.epa.gov/sites/production/files/2020-01/documents/econ_analysis_-_nwpr.pdf.
8
D. A. Keiser et al., “Report on the Repeal of the Clean Water Rule and its Replacement with the Navigable Waters Protection Rule to Define Waters of the United States (WOTUS)” (External Environmental Economics Advisory Committee, 2020); www.e-eeac.org/wotusreport.
9
US Environmental Protection Agency, “Guidelines for preparing economic analyses” (2010); www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses#download.
10
P. Howard, J. Shrader, “An evaluation of the revised definition of Waters of the United States” (2019); https://beta.regulations.gov/document/EPA-HQ-OW-2018-0149-5272.
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J. C. Whitehead, “Comments on ‘Economic Analysis for the Proposed Revised Definition of Waters of the United States’” (2019); https://beta.regulations.gov/document/EPA-HQ-OW-2018-0149-9717.
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US Environmental Protection Agency, “Response to Clean Air Act Section 126(b) Petition from New York” (2019); www.federalregister.gov/documents/2019/10/18/2019-21207/response-to-clean-air-act-section-126b-petition-from-new-york.
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Institute for Policy Integrity, “Brief of the Institute for Policy Integrity at New York University School of Law as amicus curiae in support of plaintiffs' motion for summary judgment,” US District Court for the District of Massachusetts, Conservation Law Foundation et al. v. US Environmental Protection Agency, 17 December 2020; https://policyintegrity.org/documents/Amicus_Brief_of_the_Institute_for_Policy_Integrity_1.pdf.
14
US Congressional Research Service, “The Wetlands Coverage of the Clean Water Act: Rapanos and Beyond” (2016); www.everycrsreport.com/files/20160427_RL33263_e0b1d527d85d13721eb7f29d3e1446c517900c45.pdf.
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F. Barbash, D. Paul, “The real reason the Trump administration is constantly losing in court,” The Washington Post, 19 March 2019; www.washingtonpost.com/world/national-security/the-real-reason-president-trump-is-constantly-losing-in-court/2019/03/19/f5ffb056-33a8-11e9-af5b-b51b7ff322e9_story.html.
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Published In
Science
Volume 372 | Issue 6539
16 April 2021
16 April 2021
Copyright
Copyright © 2021, American Association for the Advancement of Science.
This is an article distributed under the terms of the Science Journals Default License.
Submission history
Published in print: 16 April 2021
Acknowledgments
We thank anonymous referees whose comments improved the paper, and J. Clement, S. Cullen, A. Gorton, and R. Noe for excellent research assistance. This work is supported by the Alfred P. Sloan Foundation through the External Environmental Economics Advisory Committee (E-EEAC) and the Giannini Foundation (J.S.S.). Our analysis derives from work that D.A.K., S.M.O., K.J.B., V.B.F., B.L.K., D.J.P., J.S.S., and J.P.S. performed as part of an E-EEAC–sponsored review of the CWR and NWPR. Our analysis also derives from work that C.L.K. performed in a similar review of these rules for the New York State Attorney General's Office. D.A.K. is affiliated with the Center for Behavioral and Experimental Agri-Environmental Research.
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