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."
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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 them, it began soon after EPA was created. But the master of mission creep, according to the two authors, was Bill Clinton EPA administrator Carol Browner, who “never misses a chance to repeat the message” that, quoting Browner, “if we can focus on protecting the children … we will be protecting the population at large, which is obviously our job.”
Plenty of EPA mission creep
There has been plenty of mission creep in the succeeding 20 years. As the EPA explains 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 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 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 EPA’s basic mission.”
Sticking to the intended plan
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.”
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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.
James Huffman (email@example.com) is dean emeritus at Lewis & Clark Law School in Portland, Ore. He wrote this for InsideSources.com.