Congress and Trump Won't 'Terminate the EPA'

It could not look more grave, more straightforwardly destructive. Below a simple title—H. R. 861, A BILL TO TERMINATE THE EPA—runs the staggering text:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

The Environmental Protection Agency shall terminate on December 31, 2018.

Here lies the illustrious EPA: established in 1970 by President Richard Milhous Nixon, strengthened by the Supreme Court and George H. W. Bush, and murdered in the first month of the Trump administration. And the man who did the deed is Matt Gaetz, a 34-year-old Republican who represents Florida’s 1st district. He has been in Congress for all of a month. The blood of the air itself is on his hands. (Don’t question that metaphor.)

H. R. 861 is real—its page on Congress.gov has gone viral over the past few weeks—but the reality that it proposes to enact will not arrive any time soon. This Congress will almost certainly not terminate the EPA, and, even if it does, H. R. 861 is not the legislative blade it will wield. H. R. 861 is a classic piece of stunt legislation: It is short, punchy, without co-sponsors, and introduced by a novice legislator. Gaetz may accomplish nothing else of note this year, but he can truthfully tell his constituents that he proposed terminating the EPA.

His bill will not pass, and the reasons it will not pass are instructive. This is not a “Donald Trump can never become president” situation: There are legal, political, and institutional obstacles that keep H. R. 861 from moving forward.

The first is simple: It is not nearly long enough. A slew of federal laws, including the Clean Air Act and the Clean Water Act, assume that the EPA exists and charge it with tasks. Just last year, Congress passed a new chemical-safety law that handed new powers to the EPA. Any law seeking to “terminate the EPA” would have to amend all those older laws that delegate authority to the agency. You cannot easily do that in a 10-word sentence.

Second, while the election of Trump—a fierce EPA critic—might indicate otherwise, a large majority of Americans like the agency. Three in five Americans say strict environmental regulations are worth their cost. Even most Republican voters want the EPA to basically stay the same. 

“Terminating the EPA,” meanwhile, sounds drastic and bad. (That’s because it would be drastic and bad.) Many House Republicans in swing districts have told voters that they will reduce the agency’s “anti-business” red tape. They have not told voters they would destroy it completely, and it is likely that they will encounter high public resistance if they move to eliminate it.

Third, any major piece of legislation will have to pass a filibuster in the Senate, and it is extremely unlikely that eight Democratic senators could be found who would send the agency to its death. For that matter, it is extremely unlikely that enough Republicans could be found. Senator Susan Collins, a Republican of Maine, rejected Donald Trump’s nominee to lead the EPA on Wednesday because she determined he was too hostile to the agency’s purpose.

All this being said: It’s not wrong for Americans who care about the EPA to be concerned right now. Many Republicans want to see its powers diminished or removed altogether. But Congress will not attempt to curb the EPA’s influence by closing it outright. Instead, it will wage war on the agency through a thousand little cuts—through bills, through joint resolutions, and through budget riders.

These will not be as self-evidently bad as H.R. 861. They will be more boring to read and harder to understand. But they could impose some harms just as consequential and long-lasting as the EPA’s outright termination.

Many of the tools for cutting down the EPA are already in place. For instance, Senator Rand Paul and 33 of his Republican colleagues have introduced the Regulations from the Executive in Need of Scrutiny Act, also known as the REINS Act. If passed, REINS would require that both the House and the Senate vote to approve any new agency regulation whose estimated cost exceeds $100 million. If Congress doesn’t approve a new rule within 70 days of its publication, the regulation dies.

$100 million may sound like a high bar to clear, but much environmental regulation falls under its purview. The EPA’s recent rule restricting toxic mercury emissions from power plants is estimated to cost $9.6 billion. The agency says the annual benefits to public health will range between $37 billion and $90 billion.

Under REINS, Congress would never have had to vote on this regulation: Simply by doing nothing, the mercury rule would have died.

Other laws could prove equally harmful to the agency. The Secret Science Reform Act requires that the EPA only make decisions based on information that is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results.” As my colleague Ed Yong writes, this sounds awesome—scientists love reproduction!—except that it would effectively keep the EPA from using public-health research, which often relies on private and confidential medical records.

The list goes on. More than 100 House Republicans have proposed prohibiting the EPA from regulating greenhouse gases and, thus, climate change. Congress is also moving to kill several Obama-era environmental regulations under the the Congressional Review Act, including rules on methane released at fracking sites and on smog that crosses state borders. It has already axed a rule preventing coal waste from being dumped into mountain streams. These actions permanently hobble the agency: Once Congress kills a rule under the Congressional Review Act, the EPA can never again promulgate a regulation on that topic.

The Trump administration can restrict the agency’s work in many other ways. There are reports that the administration will attempt to break up the EPA’s enforcement division, which would severely reduce the agency’s ability to make businesses comply with environmental rules. Congress and the Trump administration can attach instructions to the budget that prohibit the EPA from spending time or money on certain problems.

If you’re interested in reading more about these steps, my colleague Ed Yong has written extensively about how Congress and the White House could limit the EPA. And Brad Plumer of Vox has sketched five possible futures for the agency over the next four years, ranging from its termination to the status quo.

None of these measures has the drama of “A Bill to Terminate the EPA.” But in their slow erosion of power, in the costly restrictions that they add to the agency, they reduce its ability to straightforwardly tackle environmental problems. If Congress tried to terminate the EPA, huge swaths of the public would lash out. If Congress hobbles the EPA slowly, most people will never notice.