EPA Administrator Explains What’s Changed at the Agency Since the Obama Years

For Environmental Protection Agency Administrator Andrew Wheeler, it’s important to make sure states—not the federal government—are making the calls on environmental issues when possible. He joins The Daily Signal for an exclusive interview to explain his views on federalism, regulation, and more. Read the interview, posted below, or listen on the podcast:

We also cover these stories:

• President Donald Trump condemns the “send her back” chant from the crowd at his rally, in reference to Rep. Ilhan Omar, D-Minn.
• The House passes legislation to hike the minimum wage to $15 an hour.
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Daniel Davis: I have the privilege of being joined now in studio by Andrew Wheeler. He is the administrator of the Environmental Protection Agency.

Administrator, thanks for being here.

Andrew Wheeler: Thank you, Daniel. It’s great to be here.

Davis: So you became the acting EPA administrator just over a year ago and were confirmed later, I believe in February of this year?

Wheeler: Yes, Feb. 28.

Davis: OK. Looking back over your full year as a EPA administrator, acting and official, what are a couple of the top achievements that you really look back on and are proud of?

Wheeler: First, it’s gone really fast. It’s been a very fast year. But getting our major regulation out a couple of weeks ago on the Affordable Clean Energy rule, huge accomplishment. We reorganized our regions, we got that done this spring. But just moving forward on so many different regulatory fronts and improving the overall structure of the agency has just been really gratifying.

Davis: During the Obama administration, a number of states were often frustrated with their relationship with the EPA. Tell us about your approach with states and with governors and how you approach regulatory issues under this administration.

Wheeler: Certainly. We defer so much more to the states. You know the big difference between the Clean Power Plan, which is the Obama regulation and the ACE, the Affordable Clean Energy rule, which was our regulation to address greenhouse gases from the electric power sector, is that we rebalanced it. We gave the authority back to the states.

What the Obama administration tried to do was make all of the energy decisions at the federal level about what types of fuel different states should be able to use. That’s not the role of the federal government. That’s not the role of the EPA.

That authority has historically been with the states and the state public utility commissions. So we have rebalanced that and returned that authority back to the states. And that’s just one example, but we’re doing that in all of our regulatory efforts.

Davis: One of those key regulatory issues was the Waters of the United States rule originally proposed under the Obama administration. And earlier this year, your agency proposed a revised version of that rule, which determines what counts as an official body of water subject to federal regulation.

Tell us about the EPA’s thought process in revising that rule.

Wheeler: Sure. First of all, the Obama regulation, as soon as it was issued, was stayed by a number of courts. In fact, today we have the Obama regulation, I believe, in effect in 22 states, and the 1980s definitions are enforced in 28 states. So it’s really a patchwork approach right now.

What we did is we took a step back, we took a look at the Clean Water Act, we took a look at the Supreme Court decisions. And we put forward a proposal, the Waters of the U.S. proposal, that we believe follows the law.

The second and the overarching guiding principle for us on the Waters of the U.S., the new definition that we have, which we’ll be finalizing by the end of this year, is that the property owner should be able to stand on his or her property and decide for themselves whether or not they have federal waters on their property without having to hire an outside attorney or consultant to do that for them.

And then third is we’re also for the first time acknowledging the fact that some waters are protected by the states and other waters should be protected by the federal government. We don’t have to overlap on every single waterway.

If the United States were to walk away from regulating water tomorrow, which we’re not going to, but if we were, most waterways would already be protected under state law. So we’re recognizing that for the first time.

Davis: The EPA uses a lot of scientific models to develop its regulations when it comes to defining waters of the United States. Obviously, there’s been controversy in recent years over how to define that and the subjectivity of what is a water of the United States. Is that primarily a legal question or is it really more dictated by science?

Wheeler: It is both. But if you go back to the original Clean Water Act, it says navigable waters are waters in the United States. So what we did is we clearly defined what is a water in the United States, but we also define what is not a water of the U.S.

For example, we clearly defined that agricultural ditches are not waters of the U.S. And I don’t think Congress intended a ditch next to a row of corn should be considered a water of the U.S. But there are certainly some scientific questions at play as far as adjacency to navigable waters for wetlands, other water bodies such as that.

So science does play a role in it, but I believe the Obama administration took it to an extreme on the science side instead of taking a look at what is truly a navigable water. And according to the supreme courts, what are the waterways that the United States government should be stepping in.

Davis: The EPA in the past has often developed major rules using science that the public didn’t have access to, wasn’t able to publicly evaluate.

What have you, under your leadership, been doing to increase the transparency so that the public can have access to the science that’s being used as the basis for these regulations?

Wheeler: We put forward a science transparency proposal, and we are working to finalize that this year.

What that does is require that any of the science that the federal government, the EPA uses for our regulatory purposes should be made available to the public. So the underlying research, the underlying data. We believe that transparency will lead to better regulations.

I started my career at the EPA working in the Toxics office on TRI, the Toxics Release Inventory, which was a Community Right-to-Know Act. And I really do believe that the public has a right to know the information that the government is using to design their regulations.

So by putting the science out there and allowing anybody to take a look at how we’re making our regulatory decisions, I think will lead to better regulations, better regulatory decisions, and decisions that will have better support with the American public.

Davis: And will that rule pretty much apply to all regulations? They all have to be based on publicly available data?

Wheeler: Yes. There will be some exceptions. Certainly, for example, some health studies data that involves people. We have to follow the HIPAA requirements, so that people’s individual health information is not released to the public. But that can be masked, and it can be taken care of and still be released in a meaningful manner so that people can understand what we’re using.

Davis: But you also recently issued a memo directing EPA offices to issue new rules regarding how they perform cost-benefit analysis on regulations. Can you explain that and what’s the goal of that?

Wheeler: Again, it’s part of transparency and making sure the American public understands what we’re basing our regulations on and why.

To the heart of that is the cost of the regulations. We owe it to the American public to explain to them what are the costs of a regulatory action and what are the benefits.

What we did last year is we proposed a regulation that would have applied cost-benefit analysis across the board to all of our regulations. We took a look at that, we took comments on it, and we decided the better approach would be to require that under each of our statutes because each statute has a different scientific basis, each statute has a different regulatory basis.

We’re going to move forward first under the Clean Air Act, and we’ll have that done by the end of this year. We will propose a new regulation that will require cost-benefit analysis to be done for all the Clean Air Act regulations, and then we will go statute by statute across all of our major statutes under the EPA jurisdiction.

Davis: Great.

In the past, the EPA has also sometimes justified new and costly rules by appealing to co-benefits, which, for our listeners, is essentially indirect benefits that don’t have much to do with the original purpose of the regulation but are used to justify it. It’s something that some of our Heritage experts here have written on a lot.

How do you perceive this issue of co-benefits? And what’s the EPA doing now to address any past abuse?

Wheeler: First of all, I think it’s fine for us to take a look at the co-benefits and explain what co-benefits might be, but that should not be the basis for a regulatory decision.

What the Obama administration did in particular on the Mercury Air Toxics regulation was the benefits that they calculated came from particulate matter, and … I believe it was 98% or 99% of the benefits for the mercury regulation were from addressing particulate matter.

We already have regulations addressing particulate matter, and we regulate particulate matter or PM down to the that is safe for people. What the Obama administration did was go beyond that, and then use those benefits to justify their standards for mercury.

The Supreme Court actually remanded that regulation back to the agency and said, “Your cost-benefit analysis is suspect. You need to take a second look at that.” Which is what we’re doing and redressing the mercury standards, and we should have our final regulation out on the Mercury Air Toxics rule by the end of this summer.

And what we’re doing is following what the Supreme Court told us to do, which is to do a more balanced approach of looking at the cost-benefit analysis and make sure that we are attributing the benefits of the regulation to the purpose of the regulation and I think we owe that to the American public.

Davis: Yeah.

Well, looking ahead to the rest of the year and next year, are there any other big items that come down the pike that folks should be looking out for from the EPA?

Wheeler: Sure. We will be finalizing our CAFE standards for the automobile sector in the next couple of months, we will finalize our Waters of the U.S. regulation by the end of this year, and we will be proposing a new regulatory program for lead and copper pipes.

This is for the drinking water, and this is what happened in Flint, Michigan, with the lead in Flint, Michigan. So we are updating that regulatory approach. It hasn’t been updated in over 20 years.

We’ll be proposing a new regulation that will help identify the lead pipes around the country that need to be replaced more quickly, and also take a look at mandatory testing for schools and day care centers and that proposal should be out sometime over the next month.

Davis: You mentioned the CAFE standards for vehicles. … I know California has played a big role in trying to set standards. Tell us about that, and how have you been pushing back on California?

Wheeler: First of all, the attorney general from Louisiana, Attorney General [Jeff] Landry, said that CAFE does not stand for the California Assumes Federal Empowerment. The federal government should be setting the CAFE standards for the entire country, not the state of California.

Now, we worked with California. We tried to negotiate with them a standard that would be appropriate for the entire country and that California could live with, and they just will not negotiate with us. They just will not come to the table. It’s really a shame.

And they’ve been in the press criticizing everything that we do instead of coming forward with a plan that would work.

[California’s] … standard just looks at CO2 from cars. We believe that there are other public policy goals that should be addressed under a CAFE standard, including public safety and the lives of our citizens.

Our proposal—as we proposed last year—will actually save American lives. It will reduce the price of a new automobile by $2,300. Right now, the average age of cars on the road is 12 years old, it used to be 8.

Older cars are less safe, and they’re worse for the environment. So by reducing the price of a new car, we believe that we [will] get more people buying newer cars—getting the older cars off the road—safer vehicles, better for the environment. And [it] will be a better program for the entire country.