When asked to comment on President Trump’s choice of former Oklahoma attorney general Scott Pruitt to head the Environmental Protection Agency (EPA), Obama administration EPA administrator Gina McCarthy told the New York Times: “It’s fine to have differing opinions on how to meet the mission of the agency. Many Republican administrators have had that. But here, for the first time, I see someone who has no commitment to the mission of the agency.”
Which raises an interesting question. What is the mission of the EPA?
The EPA website states that the agency’s mission “is to protect human health and the environment.” That sounds reasonable, but does it mean EPA has authority to do whatever its administrator and 15,000 employees conclude will protect human health and the environment? Judging by the agency’s ever-expanding intrusion into American lives since its creation in 1972, it would seem the answer is yes.
By executive order, President Richard Nixon consolidated responsibilities of more than a dozen federal departments and agencies into the EPA. Nixon’s executive order called for “the establishment and enforcement of environmental protection standards consistent with national environmental goals.” While it was clearly within the president’s authority to reorganize the executive branch by consolidating environment-related functions into a new agency, only Congress, as the law-making branch of government, could establish “national environmental goals.”
Congress had already established such goals in the Clean Water Act, the Clear Air Act and other legislation. It would supplement those goals in subsequent legislation. But at the same time, EPA engaged in what Pranay Gupte and Bonner Cohen labeled “mission creep” in a 1997 article for Forbes. According to Gupte and Bonner, mission creep began soon after EPA was created. But the master of mission creep, according to the two authors, was the Clinton administration’s EPA administrator Carol Browner who “never misses a chance to repeat the message” that, quoting Browner, “[i]f we can focus on protecting the children . . . we will be protecting the population at large, which is obviously our job.”
There has been plenty of mission creep in the succeeding 20 years and EPA explains why on its website, though there is no acknowledgement that the agency might be establishing environmental goals not embraced by Congress. According to the website: “A number of laws serve as EPA’s foundation for protecting the environment and public health. However, most laws do not have enough detail to be put into practice right away.” So if Congress adopts vague laws does it fall to the executive branch to clarify things by enacting regulations that promote EPA’s self-defined mission whether or not they comport with what Congress intended? Apparently so, particularly given the long-standing judicial deference to agency interpretations of Congressional statutes. The EPA website goes on to state that in addition to writing “regulations that explain the critical details necessary to implement environmental laws … a number of Presidential Executive Orders (EOs) play a central role in our activities.” President Obama well understood that method of mission creep.
Part of what worries Democrats and environmentalists about Scott Pruitt is not just that he seems likely to curtail mission creep, but that he intends to undo as much as he can. In a New York Times op-ed former EPA administrator William Ruckelshaus accepts that “there are changes that can be made to improve how the agency operates” but insists “those changes can never be seen as undercutting or abandoning the E.P.A.’s basic mission.”
Again, what is EPA’s mission? Is it to protect human health and the environment? In a sense, yes. If EPA implements and enforces the environmental laws enacted by Congress, human health and the environment will benefit. But it is not the mission of EPA to do whatever the president, the administrator, or the thousands of EPA bureaucrats believe will protect human health and the environment. Like every other department and agency of the executive branch, EPA’s sole mission is to “take care that the laws be faithfully executed.”
That’s how the Constitution defines the executive mission. The idea that executive departments and agencies have missions independent from those set by Congress ignores the constitutional separation of powers and goes a long way to explaining why we have a federal government that intrudes into almost every aspect of our daily lives. If Scott Pruitt can stem the tide at EPA by confining the agency to the execution of laws actually enacted by Congress, perhaps other agencies will follow suit and begin restoring the constitutional separation of powers.