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Op-Ed written by General Slatery in support of Pruitt to lead EPA

Thursday, January 12, 2017 | 3:01pm

The following is an op-ed written by Tennessee Attorney General Herbert H. Slatery III explaining his support of Oklahoma Attorney General Scott Pruitt to lead the EPA.

Scott Pruitt’s A Good Pick – Attorney General Herbert H. Slatery III

The selection of Oklahoma Attorney General Scott Pruitt to serve as Environmental Protection Agency Administrator is bold.  It is also encouraging.  It has attracted a lot of notice and criticism, the hue and cry is loud.  “He does not believe in climate change; he does not believe in the EPA’s mission; he favors the oil and gas industry.”  I do not think he fits any of those descriptions.  Here’s why I think General Pruitt is a good pick: He is a lawyer, a lawyer who understands the Constitution, in particular the limitations placed on the executive branch and its agencies.  Our Office has worked with General Pruitt and other Attorneys General on a number of issues ranging from immigration to education to the environment to health care.  We have joined several lawsuits challenging broad, overreaching actions by federal agencies.  We do not join these cases lightly, to “make a statement”, or for some political motivation.  We do it to protect the State of Tennessee, its citizens and its sovereign right to govern.

My recollection is that General Pruitt was a leader in bringing a number of these cases.  Here is an example:  One case challenged an executive directive, a written order, by the Director of Homeland Security saying the federal government would not prosecute (the legal term is that they would defer prosecution) more than 4 million parents of minors who were legal residents or citizens, even though the parents were in the country illegally.  Now if you are, like me, completely frustrated by Congress’s failure to address immigration reform, this directive may sound all right.  But the executive branch cannot change the law; that is solely up to Congress.  General Pruitt understands this.  I recall a conversation in which he said that at the very least DHS should have complied with the minimal notice and hearing provisions of the Administrative Procedures Act.  DHS did not even do that; it just wrote a directive and sent it out.

General Pruitt’s position on these matters is consistent.  He took the same position on education, health care and environmental issues.  When a federal agency takes the voice of the people and their elected representatives out of the process, that is a problem.  The framers of the Constitution probably had no idea the federal government would morph into this administrative state under which we all operate, but they certainly did not provide for removing the voice of the people altogether from these issues.

Here is another example: Tennessee has over 67,000 farm operations.  Farmland covers almost 11 million acres in Tennessee.  The production of livestock and key field crops like soybeans, cotton, and corn are significant sources of revenue.  Farmers represent one of the state’s core constituencies.

The EPA under the current administration unveiled the Waters of the U.S. (WOTUS) rule. WOTUS expands the definition of waterways regulated by the EPA to include any body of water that has a bed, bank and high water mark.  Streams, creeks, ditches, brooks, and even ponds are arguably all under EPA regulation because of this rule. So a sizeable percentage of private land in Tennessee is under the EPA’s regulation.

When the rule came out, Lacy Upchurch, then President of the Farm Bureau, said “farmers are doing a good job with their conservation practices. We just think it’s overreach from the EPA.”  All farmers want clean water, but under WOTUS, farmers may have to obtain new permits from either of two federal agencies, the EPA or the Army Corps of Engineers.  This would require surveys, assessments, wait times and fees. Building a pond might become a regulatory nightmare.  Disturbing a stream without a federal permit in Tennessee could cost a farmer up to $51,570 per day in civil penalties.  If he or she could pay that, the only way to recoup it would be to charge higher prices, leaving consumers with higher grocery bills.  Scott Pruitt would weigh all of this before issuing a rule like WOTUS.  Protecting an individual’s property rights would be important to him, when faced with how to determine modifications of a waterway.

As EPA Administrator, Scott Pruitt will bring a reasoned and balanced approach back to the agency. He is a constitutional conservative. He has reached across the aisle to pass meaningful regulations to protect Oklahoma waters and has aggressively pursued litigation against polluters. As a state Attorney General he developed sophisticated and practical ecological protections. He understands the EPA’s mission to guard human health and the environment.  At the same time, he understands the bigger picture that regulations affect our property rights, our ability to compete, and our livelihoods.

He understands that notwithstanding the ubiquity of federal agency involvement, the Constitution, in particular the Tenth Amendment, reserves significant rights to the States.  Frankly, I find refreshing the thought that someone who really understands the importance of States’ rights and the separation of powers will be leading a large federal agency like the EPA.  There may be a whole new set of questions being asked – Can the executive branch do this without Congress?  What is the effect of this action on the economy?  Property rights?  Scott Pruitt will be a tough and responsible steward of the environment.  Scott Pruitt is a good pick and should be quickly confirmed so he can get to work.