Joe Biden Just Destroyed What Was Left Of EPA’s Independence And Integrity

Executive Order Centralizes Control Of EPA Regulations In The White House

“Unitary Executive” On Steroids

[Update: 1/28/21 – Looks like I was wrong about the press ignoring this – the NY Times editorialized today:

• Ease Up on the Executive Actions, Joe.

Not surprisingly, NYT readers slammed it severely. But I agree with it, but for very different and far narrower reasons.~~~ end update

It’s Federalist Society legal radicals, recent Trump Supreme Court radical right wing appointees like Kavanaugh, and authoritarian Republicans (see Bush Justice Dept. “torture memo” John Yoo) who advocate the “unitary theory” of Executive Power.  (Annenberg):

This theory holds that Congress cannot limit the president’s control of the executive branch because the Constitution sets up a hierarchical system whereby the president has the most power. Supporters argue that Congress can’t set up independent executive agencies and counsels that aren’t controlled by the president.

That theory concentrates power in the President and thereby politicizes and destroys the integrity and independence of federal agencies, like the EPA.

Those agencies are supposed to follow the science and law in formulating regulatory policy, not diktat from the White House.

While some principled libertarians have warned about the risks of the “unitary executive” (see this Cato Institute piece), ironically, in an opportunistic and unprincipled attempt to ridicule Trump, so called progressives have foolishly backed this right wing theory of government, e.g. See this piece in The Atlantic.

Well, those “liberals” at The Atlantic have gotten what they asked for.

Just like Obama normalized much of the Bush war crimes and abuses of the national security surveillance state, ironically, it is Democrat Joe Biden who just has now normalized the unitary theory of Executive Power.

Biden did so in his highly praised Executive Order:

• Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis

Biden’s executive order asserts complete White House control over EPA regulatory policy and specific regulations.

The Executive Order does so via subjecting specific EPA regulatory decisions to review and approval by his White House Office and Management and Budget (OMB) and Biden’s newly created “National Climate Advisor”.

Section 2.(b) reads: (emphases mine)

(b)  Within 30 days of the date of this order, heads of agencies shall submit to the Director of the Office of Management and Budget (OMB) a preliminary list of any actions being considered pursuant to section (2)(a) of this order that would be completed by December 31, 2021, and that would be subject to OMB review.  Within 90 days of the date of this order, heads of agencies shall submit to the Director of OMB an updated list of any actions being considered pursuant to section (2)(a) of this order that would be completed by December 31, 2025, and that would be subject to OMB review.  At the time of submission to the Director of OMB, heads of agencies shall also send each list to the National Climate Advisor.  In addition, and at the same time, heads of agencies shall send to the National Climate Advisor a list of additional actions being considered pursuant to section (2)(a) of this order that would not be subject to OMB review.

The EPA’s science and regulatory discretion – delegated by Congress to EPA via environmental laws, standards, and administrative procedures – has now been usurped by the Biden White House, who control both OMB and the National Climate Advisor.

The OMB review is not new – there are longstanding Executive Orders and OMB review policies and procedures in place. (OMB is a back door for special corporate interests to kill, weaken and delay regulations).

However, importantly, the National Climate Advisor White House review is new, and there are no regulations, standards, or formal policies and procedures that constrain that review.

[Obama had a climate czar in the White House, but I’m not aware if that office had a formal role in regulation or if Obama Ex. Orders targeted specific regulations).

Adding insult to injury,  Biden’s climate advisor  – Gina McCarthy – is Obama’s former EPA Administrator.

If I were the Biden’s EPA Administrator nominee, I’d resign.

Of course, all the liberals and Democrats and media pundits who were outraged over Bush, Yoo, Kavanaugh and Trump’s views and actions on the Unitary Executive will be silent in the face of Biden’s deployments of those same powers.

And don’t expect any criticism by media or political pundits or environmental groups.

I’m calling hypocrisy BS on all that.

[End Note:  There are legitimate ways to accomplish similar objectives without destroying EPA’s independence.

And I objected on similar grounds when Republican NJ Gov. Christie issued Executive Orders #2 and #3 and #4 that unilaterally imposed new standards for regulatory review that were not legislatively authorized and a new regulatory review role of the Lt. Governor and “Red Tape Review Commission.”

I criticized Democratic Gov. Murphy’s Executive Order #63 on regulatory policy as well.

 At least I’m consistent.