New EPA Rules Threaten Property Rights in Utah

School children across Utah were likely exposed this week to the virtues of environmental conservation and the heroics of “Captain Planet” in honor of Earth Day. We presume that few were introduced to the unintended consequences of federal environmental regulation. Forty three years ago, the Clean Water Act was enacted—the original intent of which was to authorize the EPA to ensure waters of the United States were not being polluted. This law has been used in modern times to prevent private property owners from developing their own property without first obtaining expensive permits from the federal government.

Later this month the EPA may be finalizing a proposed rule to define the “waters of the United States” over which it has regulatory jurisdiction under the Clean Water Act. The EPA has been unsatisfied with the way in which ambiguity about the definition has led to recent court decisions that seem to confine EPA authority to interstate or “navigable” waters and only those additional waters that have a “significant nexus” to navigable waters. Conversely, the regulatory trend of EPA enforcement has led to the expansion of their jurisdiction to intrastate waters including adjacent wetlands, intermittent tributaries that may only flow during wet seasons, and even remote bodies of water at times. Historically, the EPA’s attempt at enforcement over such waterways has led to Supreme Court litigation resulting in precedent that has narrowed this scope. Dissatisfied with this result, the EPA now seeks to permanently define their regulatory overreach in a more expansive way while also precluding future legal battles over jurisdiction.

The way “waters of the United States” is defined in statute will have significant and far-reaching effects for private property owners, agriculture, and industries throughout the country. By expanding the scope of this term, the EPA will gain jurisdiction over millions of acres and countless private activities. Representative Harold Rogers (R-Ky), Chairman of the House Appropriations Committee, called the proposed rule “the biggest land grab in the history of the world,” expressing concerns that it would have a profoundly negative economic impact. Farmers across the country are so concerned about the impact of the rule that the Farm Bureau launched a public awareness campaign to “ditch the rule”—referencing their assessment that application of this expanded definition could extend regulatory control even to irrigation ditches on farm property.

EPA claims its purpose is to bring certainty and clarity to the definition after recent supreme court decisions. However, the only thing that will become clear and certain is that EPA authority will be broadened well beyond the 10th Amendment limits of federal power. This comes as no surprise to those who are familiar with other recent EPA rule making efforts where the agency has sought to expand its jurisdiction over air by categorizing carbon dioxide as a pollutant.

This expansion of the regulatory state threatens property rights. Beyond just increased burdens on development and industry, this consistent expansion of federal authority turns the fundamental concept of property rights on its head. If a property owner must constantly ask permission from the government for the use of their property, the reality is that those property rights do not really exist at all. The level of regulation over property in our country today hearkens back to feudal English times when individuals had no absolute property rights, but only those temporary grants subject to the will of the sovereign king. Our country was to be one in which the people were sovereign and rights were absolute. It was a conscious rejection of the old system and an innovation that facilitated much of our economic success to date.

We call on Utah to follow the example of states around the country who have proposed laws to reject this expansion of federal authority and nullify unconstitutional EPA actions and rule making.

Here is a short list of recent examples to which Utah can look:

• Indiana—HB1290 (2015): Broad EPA Nullification
  Nullifies all regulations imposed in Indiana by the EPA. Provides that the department of environmental management shall provide environmental protection for the citizens of Indiana. “The regulation making authority of the United States Environmental Protection Agency is not authorized by the Constitution of the United States in any article or amendment and violates the Constitution’s true meaning and intent as given by the founders and ratifiers.”
• West Virginia—HB2593 (2015): Nullification of EPA waters of the US rule
  The “Private Property Protection Act” declares that the EPA lacks the authority to enforce the rule and expressly asserts state authority and jurisdiction over such intrastate waters and places the duty on the state to adopt all measures necessary to prevent the rule’s effect on property rights of the citizens of WV. Makes it a felony for any state officer to act to enforce the rule in WV and directs the AG to represent any citizen charged with violation of the rule.
• Arizona—SCR1015 (2015): Nullification of EPA waters of the US rule
  Proposes an amendment to the state constitution to assert state authority over non-navigable intrastate waters and to prohibit state officers or state resources to be used in enforcing federal actions over non-navigable intrastate waters related to the proposed rule. Builds on the idea of the previously successful Proposition 122. Bill passed Senate subcommittee.
• Arizona—HB2055 (2015): Resistance to the EPA waters of the US rule    
  Requires Governor approval and notification of Speaker and Senate President prior to the use of any state resources for the cooperation with EPA in the enforcement of the new waters of the US rule (Utah had similar language in statute prohibiting cooperation for compliance with REAL ID).
• Arizona—SR1003 (2014): Broad EPA Nullification
  Senate resolution supporting the nullification in Arizona of all rules imposed by the EPA.
• Oklahoma—SB1167 (2014): Broad EPA Nullification
  Declares the rule making authority of the EPA unconstitutional and invalid in the State of Oklahoma. Directs the Legislature to adopt any and all measures necessary to prevent the enforcement of rules issued by the EPA which are not specifically authorized by Congress.
• Idaho—HB473 (2014): Broad EPA Nullification
  Declares EPA authority in Idaho null and void and directs the state to take any and all measures necessary to prevent enforcement of EPA regulations.
• Virginia—HB1357 (2010 & 2011): Nullification of EPA greenhouse gas rule
  Prohibits the Air Pollution Control Board and the Department of Environmental Quality from taking any action to restrict the emission of carbon dioxide. Any federal law or regulation that purports to prohibit, limit, or control in any way the emission of carbon dioxide shall be without authority, void, and of no force within the boundaries of the Commonwealth.