Utopia in the Marshes (Waters of the United States Rule slips below the surface.)

Well, here it is: the most controversial thing I will write this year. Let’s get on with it.

 

 

The response to rescission of the Obama-era Waters of the U.S. rule seems nearly uniform among outdoor and conservation minded individuals, something akin to a scowling Thunberg reprimanding, “How dare you!” Now what stands between idyllic meadow meanders and the appetites of mining, big ag and housing development!? Surely this was a step too far for Trump and his appointees!

The messaging from the political left is simple enough here, it’s a rather hackneyed and consistent theme: “People bad, nature good (corporations worse).” Upon this bedrock we are asked to think about the removal of protections vital to the health of our nation’s waterways, without realizing that the debate has already been framed for us within questionable premises. We’re asked to see only unmitigated public goods without acknowledging incumbent downsides.

I suppose I could obviate the rest of this article and answer my own question about “what stands between…” succinctly like this:  The Federal Water Pollution Control Act (Clean Water Act) stands between polluters and U.S. waters. So does the policy of 50 state agencies and innumerable whistle-blower activist groups. We libertarians might posit as well that reputational safe-guarding offers a more demanding incentive than even these. In short, our tiny flowages and favorite marshes have not been left exposed to the wolves of Wall Street or the titans of industry as most American media outlets would have you believe. (One must remember that post 2016, most of these outlets exist solely to bring down our current president – this kind of keeps things in perspective.)

 

 

I’ve heard the cry many times in the last 48 hours that this is all about the environment, a backdrop against which nothing else really matters. This is existential! This is all about living things – you can’t bring petty politics into this!

I’d like to demonstrate that this isn’t really true. This is a matter of the environment and a matter of the people. And if I believed the shrill cries of the dominant environmental agitators, declaring incipient environmental doom, I too would take a stand for regulation like that imposed in 2015. But we’re not in a state of environmental peril here in America; our environmental trends are, by far, in the right direction and have been so for longer than any of us have been alive.

I’d just like to take a few moments to briefly address several perspectives from which I, as an environmentalist, American and libertarian support rescission of the Waters of the U.S. rule:

 

 

  • First, when confronted with leviathan rule-making (not legislation but rule-making) the idea of “mission creep” springs to mind. Instead of trying to re-capitulate a theme I’ve written on before, I’ll simply insert here a brief comment I wrote for a think tank a couple of years ago in support of the administration’s first movement toward the demise of WOTUS:

 

 Wikipedia defines “Mission Creep” as:

“the expansion of a project or mission beyond its original goals, often after initial successes”

 

But also crowding Mission Creep’s page should be the full text of the Waters of the United States Rule or at least a lucid photo of its cover sheet, so that public school wards can have a visual. WOTUS would be among the finest example of this bureaucratic foible if not for the Affordable Care Act or Dodd Frank. This is how bureaucracy happens. Begin with a worthy goal: clean water. Then add hundreds of pages of directive minutiae on how to achieve that. Look for all the places dirty water can hide and control all of them too.

Yes, clean water begins at the sources – either as runoff or as groundwater (I did write a little book on the subject last year). But the sources of a river aren’t counted in the dozens, they’re counted in the hundreds or thousands. For those of us who hold a clear mental picture of the multitude sources of any given river, the thought of a bureaucracy large enough to regulate them all strikes fear. This should be true for landowners as well, who should all celebrate today. The EPA Mission Creeps have been thwarted.

 

 

  • Federalism: Here’s an idea that shouldn’t bear explaining to adult citizens of the U.S. but still might. One can look at the proceedings of our Constitutional Convention and see a group of men gingerly trying to achieve compromises that would only put in place the most tenuous, liberal constraints over a collection of disparate, free states (and free people). There were incredibly important reasons for this and union would have never been achieved if the nation’s founding charter were not framed this way. We are not governed and planned centrally here in America; rather power is dispersed to the greatest extent possible – it’s a central tenant of the great American experiment.

This idea was, in fact, mentioned prominently in the EPA’s recent public statement on the Waters of the U.S. rule:  “(WOTUS) failed to recognize the responsibilities and rights of the states to manage their own land and water resources.”    This is why there are few matters of environmental regulation that are appropriately exercised  by the federal bureaucracy and many that adhere to the states. It’s a matter of the environment and a matter of the people.

 

  • Political pressures were certainly at play at the time of this bill’s passage, as they always are inside the D.C. beltway. The longer I watch the machinations of Washington, the more skeptical I become about anything at all being driven by altruism or love of wild green places. It’s no secret that the Democrat party has a strong constituency of private environmental organizations as well as the employees of the state and federal environmental bureaucracies. It was time to make one of their dreams a reality, especially if congressmen wanted to keep their seats next time around. Fundamentally, which rings more true of politicians on either side of the aisle: that they are driven by altruism or that they are driven mostly by power and greed?

It’s a matter of the environment and a matter of the people.

 

 

  • John Adams affirmed that we are a “nation of laws, not of men.” This quote comes back to me whenever I consider gargantuan over-arching environmental regulation. Adams meant something like “we codify it in law so that we don’t have to rely on the whims of men to decide what’s right for us.” Thorough and voluminous law such as this represents the antithesis of Adams’ dictum, however. Our nation’s Constitution can be fit on a fraction of the paper required to print this set of exacting regulations. It is so expansive and even self-contradictory that people (judges and lawyers) will intervene at every step to elucidate its application to every unique case. And in reference to surface water, every case is a unique case. Surface water is notoriously amorphous, to the point of resisting the confinement of legal verbiage since 1972. WOTUS looked like law but immediately began to decay into the realm of legal opinion.

Instructive here is the Rapanos vs. U.S. case which began in the late ’90’s and carried forward through a long series of appeals well into the 2000’s. And this is where we run into the great crux of it all – a technical matter that has boggled water regulation and tied innumerable cases up in courts for decades: defining and delimiting flowages and wetlands. For people far removed from the natural world, I think this sounds like a strange matter that should be easily obviated by math and methodology. It’s not, as those of us closer to nature understand.

John Rapanos of Michigan filled 22 acres of wetland in the late ’80’s for commercial development, believing that his actions were in keeping with Clean Water Act standards which, as written, would not be applied to isolated wetlands. In this case, as in many others, the issue at hand is not whether the wetland should have been filled but whether statutes, as written, prohibit such action. Did either the EPA or Army Corps have jurisdiction to fine a developer for filling these acres?

 

 

The case bounced back and forth for 16 years or so between lower courts and finally the Supreme Court in 2006. This says much – the matter of delimiting flowages helped keep the case alive through several court decisions, none of which solved the matter definitively. In 2006, the Supreme Court deadlocked on the case and Justice Scalia wrote a touchstone plurality opinion that remains instructive to this day.

In brief, Scalia accused the Army Corps of “exercising the discretion of an enlightened despot,” which was excellent phrasing, hearkening back to the warning of John Adams concerning our country of laws, not of men. Scalia more than hinted that broad interpretation was at play here, rather than even-handed application of law. He went on to say that a range of factors were included in the decisions of the Corps including aesthetics and “the needs and welfare of the people.” Yes, this sounds much like arbitration of the “rightness” of individual actions based on the inclinations of bureaucrats. Is there any standard that can be derived and applied with even-handedness tomorrow and the next day? Included in this much longer opinion was mention of the fact that the average permit applicant spends 788 days and $270,000 trying to achieve approval. Scalia’s vivid description tends toward a vision of a United States which is no longer comprised of a free people served by their duly elected representatives but rather a people hostage to an appointed bureaucracy.

 

 

  • The economy of our country is of value to us all, whether we admit it or not. A healthy, vibrant and free marketplace allows us all to enjoy the level of security and comfort we do. One of the great threats to that economy, however, is uncertainty; no, not the ever-present uncertainty of a dynamic marketplace but a shifting playing field – a transitory regulatory environment. Essentially, business owners need to plan ahead, to forecast staffing levels, inventory, capital investment, tax liability, etc. An incomprehensible and shifting battery of new law, however, thwarts these efforts, putting honest business people at the mercy of bureaucrats. Environmental over-regulation comes with real-world costs.

We’re asked to think of greedy corporations, not our uncle Joe who’s been trying to get his small business off the ground. It’s a matter of the environment and a matter of the people.

 

  • When we accept regulation such as the Waters of the U.S. rules, we confess our love of litigation. The more complex the legal code, the more potential and need for court battles over every enforcement action and every element of potential development or pollution. Does anyone wish we were a more litigious society? This has already proven to be the case as states, municipalities and individuals have successfully challenged the 2015 rules numerous times since adoption.

 

 

  • We proceed as though there were no downside to environmental regulation. There are many counter-points that could be offered to this view but one of the most significant is simply the idea of the American economy. To those who do not value capitalism and the free market, the United States rose to its position of prosperity by exploitation and its glut of natural resources. But there are far more exploitative nations with greater resources per capita who haven’t approached our level of wealth and security. A free marketplace has done inestimable good for the America of today (and, in fact, for its environment) but it’s not maintained effortlessly. This is the greatest risk of bureaucratic expansion and the metastasis of the legal code: we needlessly impede a marketplace that must remain free to remain functional.

And, simply put, for many of us, it’s supremely uninspiring to think of attempting to make a success of our own dreams, mired in the quagmire of endless compliance and shifting statutory sands. I started an e-commerce business a couple of years ago myself and I would not have done so had Donald Trump’s opponent won the 2016 election. It’s not just theoretical – it’s personal. Yes, it’s a matter of the environment and it’s a matter of people.

 

 

Finally, I finished an obscure Russian book a few days ago by the early 20th Century fiction writer Zamyatin. The setting is the year 2600 and this dystopia plays out within the last unified bastion of civil society – a city constructed of metal and glass in which watchful overlords ensure that all is efficient and all lends to the good of all. Chew 50 times before swallowing and lower the blinds to your transparent apartment only after acquiring the required paper ticket. All are kept safe from wildness by a green wall surrounding the city which keeps out wild people and creatures, as it has for centuries.

 

Zamyatin was among the first to glimpse the end game of divesting personal liberty to those who “know best,” the enlightened altruists, the central planners. And the end game would look something like a city utterly separated from wild places in which we would no longer have the opportunity to do anything that would change nature and wildness could no longer impact us. George Orwell, Ayn Rand and Neil Peart picked up this ball and ran with it. Perhaps Zamyatin had encountered the writings of Alexis d Tocqueville at some point who penned this at least a generation earlier:

 

“It (government) covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, guided; men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

 

 

I think there are better ways to live and I think we’ve found something supremely good here in America – great personal freedom and a flourishing environment (if we could ever hear the truth on this). Unprecedented peace, wealth and comfort alongside the encroaching wild things.

 

Does environmentalism mean mandatory despair and self-loathing? Does environmentalism mean mandatory growth of the state?

 

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One thought on “Utopia in the Marshes (Waters of the United States Rule slips below the surface.)

  1. Generally, I’d like to agree with this idealism, but I just found out about the PCB’s leaching into the Shenango River from an old Westinghouse plant in Sharon PA. There now exists an advisory against eating any fish from this once beautiful fishery.

    Like

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