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Scott Pruitt's EPA: Don't Forget Our Rights

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On Wednesday, Trump transition team officials announced that E. Scott Pruitt, Oklahoma Attorney General and longtime ringleader of corporate and state resistance to the Clean Power Plan, will be named Administrator of the Environmental Protection Agency. As an affected citizen troubled by this appointment, I decided to directly ask the nominee some of my lingering questions about his policies.


Dear Mr. Pruitt,


This letter is probably not going to have any impact on the policy of the Environmental Protection Agency for the next four years. It's not going to save any lives that thousands of pages of scientific studies and legal arguments couldn't protect. I know it's not going to change your mind. But it's all I can do.


I was a supporter of President-elect Trump during the campaign, and the events of the past weeks largely validated my faith in his promises, but the laissez-faire environmental policy you have long espoused has me concerned, quite frankly. Your past positions in the ongoing lawsuits over the Clean Power Plan show great solicitude for the pecuniary cost of the EPA's regulation of the energy sector; but the plenary constitutional powers of the United States government and the human cost of inaction, though harder to quantify, must not be forgotten in the quest to revitalize the economy.


What is the paramount vision the agency under your direction will promote? For decades now, we have compared ourselves to the Chinese, envied their GDP and their rapid rise while watching from our slow, nearly imperceptible decline. But is the image of prosperity really the photograph of throngs waiting for a streetlight to change, just their eyes visible, their countenances concealed by surgical masks? Is the symbol of economic rejuvenation truly the footage of a cargo ship puffing blindly ahead in the space between the ocean of tainted green below and the sea of miasmic gray above, struggling to find the vague red glow of a safety beacon? Will these images be of our sidewalks, our ports, our lives? That choice is entirely in your hands, now. How much do you estimate the gold disc of sun to be worth, and what benefit compensates the citizens of Beijing who can no longer see it in the sky overhead? How many cents is each act of respiration valued at, and how much would a man suddenly unable to breathe give to have the privilege restored for just an instant? How many dollars does each individual's stake in our common atmosphere - the right to suspire freely and to enjoy a clear sky, a prerogative Justice Brandeis once called "an easement of light and air" - represent? These are your decisions to make. This is the arithmetic of the air, just as much as any costs of implementation can be.


Those regulatory effectuation expenses incurred can be assailed as unreasonably burdensome, or they can more simply be acknowledged as the cost of living. The government of a free nation is bound to respect the rights of natural and juristic persons within its borders against adscititious, unjustifiable regulation. But it does not have to do so at the price of the health, safety and lives of its citizens. It does not have to do so by relinquishing its sovereign authority to regulate interstate commerce and the airspace over which it retains sole control.


The exclusive authority of Congress over commerce between the several states is unambiguously set forth in Article 1, Section 8. The issue of environmental protection may be a comparatively new incarnation of the same conflict among the levels of our government that the Constitution was written and ratified to resolve, but it cannot be exempted from the univocal wording meant to cover all interstate commerce. The establishment of federal control over navigable waterways resulted from the recognition of a river's inconstancy, the impossibility of imposing political borders on the formless flow of fluid. See Gibbons v. Ogden, 22 U.S. 1, Transportation Co. v. Chicago, 99 U.S. 635, Pennsylvania v. Wheeling Bridge Co., 18 How. 421, Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, and Gibson v. United States, 166 U.S. 269 ("Although the title to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the federal government by the Constitution"). As was said further in Gilman v. Philadelphia, 3 Wall. 713:


"The power to regulate commerce comprehends the control... of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, interposed by the states or otherwise; to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders."


The federal government is vested with the same control over United States airspace for much the same reasons. The notion that each state can set and enforce its own emissions standards - without materially affecting the air quality of another state and the health and safety of its residents - is clearly as chimerical as any supposition that the states' riparian policies are not inevitably interlinked. As the Supreme Court noted per Justice Ginsburg in EPA v. EME Homer City Generation, 134 S.Ct. 1584 (2013):


"Some pollutants stay within upwind States' borders, the wind carries others to downwind States, and some subset of that group drifts to States without air quality problems. 'The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.' The Holy Bible, John 3:8 (King James Version). In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind." See also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004), 49 U.S.C. §40103.


The constitutional assignment to Congress of the regulation of interstate commerce thus ineluctably vests the United States government with undivided control over air and water. We cannot allow this fundamental framework to be subverted due to policy disagreements or concerns of economic expediency. The principal objections to the Clean Power Plan are the fiscal impact of its implementation, and the heightened impact felt by states with an economy centered on the production of oil and natural gas; but this cost of our constitutional system cannot be permitted to take precedence over the Constitution itself. As President Andrew Jackson famously proclaimed during the Nullification Crisis in South Carolina in 1832:


"If the unequal operation of a law makes it unconstitutional and if all laws of that description may be abrogated by any State for that cause, then, indeed, is the federal Constitution unworthy of the slightest effort for its preservation. We have hitherto relied on it as the perpetual bond of our Union. We have received it as the work of the assembled wisdom of the nation... We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here, and our hopes of happiness hereafter, in its defense and support... Were we mistaken, my countrymen, in attaching this importance to the Constitution of our country?"


The contentious nature of the Clean Power Plan litigation has been replaced now by your delicate responsibility of ensuring our citizens' safety - the land and our lives are in the balance of every cost-benefit analysis the Agency will conduct under your leadership. I ask you Jackson's enduring question now in the hope that the overriding authority over our natural resources granted to the federal government by the Constitution will not be misused or eroded during your tenure.

Respectfully yours,
Kate Brisack

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