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March 7 — Be wary of any promises from Republican presidential candidates to abolish federal entities such as the Environmental Protection Agency and Energy Department, legal scholars told Bloomberg BNA, because they will not come true.
Eradicating federal agencies would require congressional cooperation and, even if an agency were dissolved, its statutory mandates would linger on for other parts of the federal government to pick up. That would create unbridled chaos for communities, states and regulated entities, scholars said.
“Most of these claims for abolishing agencies—like the EPA which exists in many, many statutes even though it was created by an executive order and certainly abolishing agencies like the Department of Energy that were congressional creations—are campaign promises without hope of delivery,” Erin Ryan, a professor with Florida State University College of Law, told Bloomberg BNA.
Far more likely, observers said, would be for a Republican president to propose significant budget cuts and staffing reductions for the agencies. No executive branch body of significant size has been killed off in modern times.
That fact hasn't stopped Republican presidential candidates, such as businessman Donald Trump and Sen. Ted Cruz (R-Texas), from threatening to do away with certain federal agencies .
Trump, for example, said March 3 during a presidential debate he would “get rid of [the EPA] in almost every form. We're going to have little tidbits left, but we're going to take a tremendous amount out.”
Cruz during the debate vowed to “pull back the federal regulators” who are “killing small businesses and manufacturing” and lists the Department of Energy on his website as one of four cabinet-level departments he would abolish as president.
“While the Energy Department as a whole serves no critical role and stifles growth through unnecessary regulation, a few programs–such as the Federal Energy Regulatory Commission, Nuclear Defense Capabilities and cleanup and decontamination programs–maintain our security and should be transferred to other departments,” Cruz says on his website. “The Department of Energy serves as a handmaid to the Washington Cartel.”
But Cruz's website concedes he couldn't do it alone, vowing the Texas senator would “press Congress relentlessly” to abolish the agencies and appoint “heads of each of those agencies whose central charge will be to lead the effort to wind them down and determine whether any programs need to be preserved elsewhere.”
That fact that no president could kill off an entire agency alone is what makes these campaign promises so unlikely to happen, scholars say.
“This is just red meat to their supporters, of course, and cannot be unilaterally accomplished,” Jody Freeman, a professor at Harvard Law School, told Bloomberg BNA. “Presidents can ask Congress for skeletal agency budgets, try to stymie or slow agency work or control them and weaken regulation through centralized White House review, but they cannot eliminate agencies or zero out budgets by fiat, which is what these candidates are promising.”
In reality, a president wishing to do away with the EPA or the Department of Energy would need a majority of the House, 60 votes in the Senate and the ability to overcome virulent opposition from the environmental and public health community, Alfred Marcus, a professor at the University of Minnesota's Carlson School of Management, told Bloomberg BNA.
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Even assuming the agency could be eliminated through legislation, Congress would also have to eliminate environmental statutes—the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act, for example—or those statutory obligations would continue on.
“You couldn’t do that immediately without having basically total chaos,” Marcus said. “I can imagine that there could be some kind of reorganization, but I don’t think they could eliminate the functions being carried out by these agencies.”
Scholars all agree eliminating either the EPA or the Department of Energy would ultimately require congressional approval, though the process would work differently for each entity.
President Richard Nixon created the EPA with an executive order in 1970 using what is known as “reorganization authority.” Congress took no action to approve or disapprove of the plan, allowing the reorganization to go forward.
That authority has since lapsed and efforts by President Barack Obama to have it restored in 2012 were unsuccessful. That means the president could not unilaterally propose interagency realignments without explicit congressional approval.
Laurence Tribe, Harvard Law professor and legal scholar, told Bloomberg BNA in an e-mail that the agency's origins are “legally irrelevant” to whether it could now be abolished.
“The fact that an executive order by President Nixon preceded the Acts of Congress constituting the current EPA, delegating regulatory powers to that agency, authorizing its expenditures and appropriating the funds in its budget doesn't make it vulnerable to unilateral presidential abolition,” Tribe said.
Abolishing the Department of Energy would be simpler, though no more likely to succeed. That cabinet-level department arose from the Department of Energy Organization Act of 1977 , which would have to be specifically repealed to abolish it.
One of the last federal entities successfully abolished was the Board of Tea Experts, a division formerly within the Food and Drug Administration that set federal standards for tea quality, purity and fitness for consumption. Even that took a formal act of Congress in 1996, though .
Despite the complicated process and daunting political dynamic, that has not stopped politicians from threatening to abolish various federal agencies previously.
Former House Speaker Newt Gingrich, then mulling a presidential run in January 2011, called to abolish the EPA in favor of a new entity called the “Environmental Solution Agency” that would work more closely with businesses and the states.
Later in 2011, Sen. Richard Burr (R-N.C.) introduced a bill—the Consolidation of Department of Energy and Environmental Protection Agency Act of 2011 —that he said would eliminate “duplicative functions” between the Energy Department and the EPA by combining them. No action was taken on the measure.
More recently, Sen. Joni Ernst (R-Iowa) advocated in 2014 shuttering the EPA during her Senate Republican primary campaign in Iowa.
“Let’s shut down the federal EPA and focus on those issues here in the state where the state knows best how to protect resources,” Ernst said at the time.
None of those threats have resulted in anything aside from bill introductions, but several groups have explored ways to gradually dissolve the EPA and return its authorities back to the states.
The Heartland Institute, which describes itself as a free-market, conservative think tank, laid out a five-year plan to replace the federal EPA with a Committee of the Whole, comprised of representatives from the environmental agencies in all 50 states.
Under the 2014 plan, the EPA's budget would be reduced to 20 percent of current levels and the new entity would be based in Topeka, Kan. Approximately 300 employees would oversee research laboratories and administrative functions of the Committee of the Whole.
“Fifty state environmental protection agencies with more than 30 years of experience have the talent to do the job without the oversight of 15,000 federal employees,” the report said. “Being located in Topeka, Kan., they will be far away from the beltway culture that corrupts public servants who come to the nation’s capital with even the best of intentions.”
David Schoenbrod, a professor with New York Law School, told Bloomberg BNA going after the EPA itself was misguided because the “problem with current environmental regulation is the statutes, which are obsolete, rather than the agency.”
“Even if a president didn’t care about environmental protection and had the power to abolish the EPA, using that power would be dumb,” Schoenbrod, also a visiting scholar with the American Enterprise Institute, said. “Abolishing the EPA would still leave in place the regulations that the EPA had imposed and prevent the construction of the new sources requiring permits ... Smarter statues could produce a cleaner environment at less cost and intrude less on state autonomy.”
In the unlikely event that the EPA and its statutory obligations were abolished with the cooperation of Congress, the resulting vacuum would be “disastrous” to public health and the environment but also to regulated entities, scholars said.
“The vacuum would create huge regulatory uncertainty, and uncertainty is bad for investment, bad for business,” Jason Schwartz, legal director at the Institute for Policy Integrity at the New York University School of Law, told Bloomberg BNA. “States would try to step in and fill the vacuum, but that leaves 50 different regulatory systems, a patchwork system that would not only be inefficient but also more difficult for businesses to comply with.”
That regulatory chaos and the political realities of needing three-fifths of the Senate to back the abolition of an agency of 15,000 people underscore why any of the Republican promises are unlikely to be fulfilled.
“It's hard to imagine Congress being willing to do so and the American public would almost certainly virulently oppose such a move,” Ann Carlson, an environmental law professor at the University of California, Los Angeles Law School, told Bloomberg BNA. “So the odds of abolishing EPA or other federal agencies seem extremely small.”
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Ann Carlson, professor at the UCLA Law School: “It's hard to imagine Congress being willing to do so and the American public would almost certainly virulently oppose such a move.”
Alfred Marcus, management professor at the University of Minnesota: “You couldn’t do that immediately without having basically total chaos.”
Jody Freeman, professor at Harvard Law School: “This is just red meat to their supporters, of course, and cannot be unilaterally accomplished.”
Jason Schwartz, legal director at the Institute for Policy Integrity at the New York University School of Law: “The vacuum [without EPA] would create huge regulatory uncertainty, and uncertainty is bad for investment, bad for business.”
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