American Water Stewardship Act

— 441 — Environmental Protection Agency OFFICE OF GENERAL COUNSEL (OGC) OGC serves as the chief legal adviser to EPA’s policymaking officials. It also pro- vides legal support to regional actions and enforcement and compliance litigation. OGC lawyers represent the agency in court alongside the Department of Justice, typically defending agency actions. Needed Reforms and New Policies l Review EPA’s Environmental Justice and Title VI authority. Wherever possible, the Biden Administration is broadening EPA’s use and interpretation of Environmental Justice (EJ)52 and Title VI of the Civil Rights Act of 196453 beyond long-standing understandings of the legal limits of that authority. As a threshold matter, there is an opportunity to redefine EJ as a tool for the agency to prioritize environmental protection efforts and assistance to communities in proximity to pollution or with the greatest need for additional protection. Allocations of agency resources, increased EPA enforcement, and/or agency distribution of grants should be based on neutral constitutional principles. In 2023, the Supreme Court is expected to provide guidance on the constitutionality of race-based discrimination as it considers Students for Fair Admissions v. University of North Carolina.54 Accordingly, the next Administration should pause and review all ongoing EJ and Title VI actions to ensure that they are consistent with any forthcoming SCOTUS decision. l Establish a policy of legally speaking with one voice. Some EPA offices (for example, the Office of Enforcement and Compliance Assurance and the Offices of Regional Counsel) assert legal positions and interpretations of the law that conflict with an Administration’s interpretation as articulated by OGC with input from program offices. It is unacceptable for the agency to have inconsistent legal positions, particularly with respect to key interpretative issues. All attorneys with authority to represent EPA—not necessarily all attorneys—should therefore be housed in OGC. These offices include: 1. The Office of Enforcement and Compliance Assurance (OECA). OECA was established during the Clinton Administration. Enforcement attorneys tend to take legal positions to win cases or obtain settlements that may be inconsistent with those of OGC and program offices. OECA attorneys should be moved into OGC. Additionally, non-attorney program staff in OECA could be moved into their relevant program offices (for example, the Clean Air Act Enforcement Advisor could — 442 — Mandate for Leadership: The Conservative Promise be moved into OAR). Beyond the avoidance of inconsistent legal positions, this policy would reduce the agency’s overall expenditures and duplication of work. To accommodate this new function, OGC could establish a new Deputy General Counsel for Enforcement position to manage the enforcement attorneys at headquarters and in the regions. 2. The Office of Congressional and Intergovernmental Affairs (OCIR). OCIR employees should not take legal positions. In all Administrations, White House Counsel is key with respect to oversight issues and has an important relationship with OGC. There must be a strategic relationship between OCIR and OGC, but OGC, in consultation with agency clients and White House Counsel, should assert EPA legal positions to Congress (for example, the assertion of interests regarding congressional subpoenas, witness availability and testimony, and document production). 3. The Office of Environmental Justice and External Civil Rights (OEJECR). OEJECR was established during the Biden Administration. EJ and civil rights functions were taken from OGC and moved into a stand-alone office as well as spread through the regions. OEJECR should be disbanded; OEJECR’s attorneys should be moved back into OGC; and nonlegal staff (for example, EJ Policy Advisers) should be moved back into the Administrator’s office as is customary. 4. The Offices of Regional Counsel (ORCs). Regional EJ staff efforts, both in the ORCs and in the policymaking offices, are highly variable. EPA is therefore likely to take inconsistent legal positions. To the extent that legal positions are taken by the ORCs and/or regional staff, they should be coordinated and approved by OGC and the appropriate regional leadership. For example, nearly all regional offices have EJ Action Plans and/or EJ Implementation Plans. Region 1’s EJ Action Plan is six pages, and Region 2’s is 66 pages. The Region 2 EJ Action Plan, for example, specifies that “ORC will conduct EJ training for all legal staff…to provide attorneys with a simple standard EJ analysis they can use regardless of the context—enforcement, grants, permits, referrals, etc.—of the case.”55 In addition, EPA should refrain from publicly undermining the National Environmental Policy Act (NEPA)56 process at other agencies and should instead focus on providing constructive, technical support during the interagency process.

— 420 — Mandate for Leadership: The Conservative Promise Subsequently, especially during the Obama Administration, EPA experienced massive growth as it was used to pursue far-reaching political goals to the point where its current activities and staffing levels far exceeded its congressional man- dates and purpose. This expansive status is entirely unnecessary: It has nothing to do with improving either the environment or public health. The EPA’s initial success was driven by clear mandates, a streamlined structure, recognition of the states’ prominent role, and built-in accountability. Fulfilling the agency’s mis- sion in a manner consistent with a limited-government approach proved to be extremely effective during the agency’s infancy. Back to Basics. EPA’s structure and mission should be greatly circumscribed to reflect the principles of cooperative federalism and limited government. This will require significant restructuring and streamlining of the agency to reflect the following: l State Leadership. EPA should build earnest relationships with state and local officials and assume a more supportive role by sharing resources and expertise, recognizing that the primary role in making choices about the environment belongs to the people who live in it. l Accountable Progress. Regulatory efforts should focus on addressing tangible environmental problems with practical, cost-beneficial, affordable solutions to clean up the air, water, and soil, and the results should be measured and tracked by simple metrics that are available to the public. l Streamlined Process. Duplicative, wasteful, or superfluous programs that do not tangibly support the agency’s mission should be eliminated, and a structured management program should be designed to assist state and local governments in protecting public health and the environment. l Healthy, Thriving Communities. EPA should consider and reduce as much as possible the economic costs of its actions on local communities to help them thrive and prosper. l Compliance Before Enforcement. EPA should foster cooperative relationships with the regulated community, especially small businesses, that encourage compliance over enforcement. l Transparent Science and Regulatory Analysis. EPA should make public and take comment on all scientific studies and analyses that support regulatory decision-making. — 421 — Environmental Protection Agency ADMINISTRATOR’S OFFICE AND REORGANIZATION RESPONSIBILITY The Office of the Administrator (AO) is intended to provide executive and logistical support for the EPA Administrator. Its stated purpose is to support EPA leadership and activities. To implement policies that are consistent with a conservative EPA, the agency will have to undergo a major reorganization. The Deputy Chief of Staff for Policy position within the Administrator’s office should be renamed the Deputy Chief of Staff for Regulatory Improvement. This position would oversee a reorganization effort that includes the following actions: l Returning the environmental justice function to the AO, eliminating the stand-alone Office of Environmental Justice and External Civil Rights. l Returning the enforcement and compliance function to the media offices (air, water, land, and emergency management, etc.) and eliminating the stand-alone Office of Enforcement and Compliance Assistance, which has created a mismatch between standard-setting and implementation. l Using enforcement to ensure compliance, not to achieve extrastatutory objectives. l Developing a plan for relocating regional offices so that they are more accessible to the areas they serve and deliver cost savings to the American people. l Restructuring the Office of International and Tribal Affairs into the American Indian Environmental Office and returning the international liaison function to media offices where appropriate. l Eliminating the Office of Public Engagement and Environmental Education as a stand-alone entity and reabsorbing substantive elements into the Office of Public Affairs. l Relocating the Office of Children’s Health Protection and the Office of Small and Disadvantaged Business Utilization from the AO and reabsorbing those functions within the media offices (air, water, land, and emergency management, etc.). l Reviewing the grants program to ensure that taxpayer funds go to organizations focused on tangible environmental improvements free from political affiliation.

— 533 — Department of the Interior order to fulfill the yet-unaltered congressional mandate contained in federal law, to provide for jobs and well-paying employment opportunities in rural Oregon, and to ameliorate the effects of wildfires, the new Administration must immedi- ately fulfill its responsibilities and manage the O&C lands for “permanent forest production” to ensure that the timber is “sold, cut, and removed.”79 NEPA Reforms. Congress never intended for the National Environmental Policy Act to grow into the tree-killing, project-dooming, decade-spanning mon- strosity that it has become. Instead, in 1970, Congress intended a short, succinct, timely presentation of information regarding major federal action that signifi- cantly affects the quality of the human environment so that decisionmakers can make informed decisions to benefit the American people. The Trump Administration adopted common-sense NEPA reform that must be restored immediately. Meanwhile, DOI should reinstate the secretarial orders adopted by the Trump Administration, such as placing time and page limits on NEPA documents and setting forth—on page one—the costs of the document itself. Meanwhile, the new Administration should call upon Congress to reform NEPA to meet its original goal. Consideration should be given, for example, to eliminat- ing judicial review of the adequacy of NEPA documents or the rectitude of NEPA decisions. This would allow Congress to engage in effective oversight of federal agencies when prudent. Settlement Transparency. Interior Secretary David Bernhardt required DOI to prominently display and provide open access to any and all litigation settlements into which DOI or its agencies entered, and any attorneys’ fees paid for ending the litigation.80 Biden’s DOI, aware that the settlements into which it planned to enter and the attorneys’ fees it was likely to pay would cause controversy, ended this policy.81 A new Administration should reinstate it. The Endangered Species Act. The Endangered Species Act was intended to bring endangered and threatened species back from the brink of extinction and, when appropriate, to restore real habitat critical to the survival of the spe- cies. The act’s success rate, however, is dismal. Its greatest deficiency, according to one renowned expert, is “conflict of interest.”82 Specifically, the work of the Fish and Wildlife Service is the product of “species cartels” afflicted with group- think, confirmation bias, and a common desire to preserve the prestige, power, and appropriations of the agency that pays or employs them. For example, in one highly influential sage-grouse monograph, 41 percent of the authors were federal workers. The editor, a federal bureaucrat, had authored one-third of the paper.83 Meaningful reform of the Endangered Species Act requires that Congress take action to restore its original purpose and end its use to seize private prop- erty, prevent economic development, and interfere with the rights of states over their wildlife populations. In the meantime, a new Administration should take the following immediate action: — 534 — Mandate for Leadership: The Conservative Promise l Delist the grizzly bear in the Greater Yellowstone and Northern Continental Divide Ecosystems and defend to the Supreme Court of the United States the agency’s fact-based decision to do so.84 l Delist the gray wolf in the lower 48 states in light of its full recovery under the ESA.85 l Cede to western states jurisdiction over the greater sage-grouse, recognizing the on-the-ground expertise of states and preventing use of the sage-grouse to interfere with public access to public land and economic activity. l Direct the Fish and Wildlife Service to end its abuse of Section 10(j) of the ESA by re-introducing so-called “experiment species” populations into areas that no longer qualify as habitat and lie outside the historic ranges of those species, which brings with it the full weight of the ESA in areas previously without federal government oversight.86 l Direct the Fish and Wildlife Service to design and implement an impartial conservation triage program by prioritizing the allocation of limited resources to maximize conservation returns, relative to the conservation goals, under a constrained budget.87 l Direct the Fish and Wildlife Service to make all data used in ESA decisions available to the public, with limited or no exceptions, to fulfill the public’s right to know and to prevent the agency’s previous opaque decision-making. l Abolish the Biological Resources Division of the U.S. Geological Survey and obtain necessary scientific research about species of concern from universities via competitive requests for proposals. l Direct the Fish and Wildlife Service to: (1) design and implement an Endangered Species Act program that ensures independent decision- making by ending reliance on so-called species specialists who have obvious self-interest, ideological bias, and land-use agendas; and (2) ensure conformity with the Information Quality Act.88 Office of Surface Mining. The Office of Surface Mining Reclamation and Enforcement (OSM) was created by the Surface Mining Control and Reclamation Act of 1977 (SMCRA)89 to administer programs for controlling the impacts of surface coal mining operations. Although the coal industry is contracting, coal constitutes