A tough-minded version of congressional oversight not seen on Capitol Hill since the days of the legendary Jack Brooks may be back if a May 10 letter from House Oversight and Government Reform Committee Chairman Darrel Issa and Subcommittee Chairman Jim Jordan to Environmental Protection Agency Administrator Lisa Jackson is any indication.
Brooks was the ornery, cigar-chomping Texas Democrat who chaired the Issa panel (known then as the House Committee on Government Operations) between 1975 and 1988. He tolerated no fools among those testifying before his committee and woe to the bureaucrat called on the Brooks carpet for wasting tax dollars. He was also among the architects of the Inspector General Act of 1978.
But aggressive oversight faded in the years after Brooks left that committee, especially between 2001 and 2006 when Republicans controlled the White House and Congress.
Issa has become a major figure since taking over as chairman of the oversight panel following the Republicans regaining the House majority in 2010, especially as a result of his dogged pursuit of the facts behind the Operation Fast and Furious scandal.
The letter to EPA, however, could indicate an important new direction in the Issa panel's approach to oversight. Where the Fast and Furious probe has focused mainly on determining who did what and when in the Justice Department's gun-walking weapons to Mexican drug cartels, the EPA letter seems targeted on preventing the agency from expanding its regulatory authority far beyond the clear intent of Congress.
The issue concerns EPA's assertion of authority under Section 404(C) of the Clean Water Act to retrospectively or retroactively deny permits issued by the Army Corps of Engineers for projects such as mineral mining in Alaska and coal mining in West Virgina.
In their letter, Issa and Jordan note that last month a federal district court ruled EPA was exceeding its authority, saying:
"EPA's position is that section 404( c) grants it plenary authority to unilaterally modify or revoke a permit that has been duly issued by the Corps - the only permitting agency identified in the statute - and to do so at any time.
"This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute. It is not conferred by section 404( c), and it is contrary to the language, structure, and legislative history of section 404 as a whole."
So, Issa and Jordan are requesting that Jackson provide documentation of the entire process by which her agency concluded that it could act on its controversial interpretation of Section 404(C), including an explanation of "the basis for EPA's claim that it has the legal authority under Section 404(c) of the Clean Water Act to block a permit even before the permitting process begins. Your answer should identify all prior precedents that EPA has relied on in drawing its legal conclusions."
Issa and Jordan also demand lists of every individual outside the agency that participated in, advised or was otherwise involved in the deliberations that led up to the decision to assert the questionable 404(C) authority.
It appears that Issa and Jordan intend to open to public examination the closed doors behind which EPA officials decided to assert a regulatory power for which it seems likely it possessed no authority from Congress.
Documents elucidating such a process are typically not available to the public or the media via the Freedom of Information Act (FOIA), which includes a "pre-decisional deliberations" exemption agency officials throughout the government routinely use to avoid having to explain how they reached a decision.
If Issa and Jordan re-establish the principle that Congress can and should actively pursue its undoubted oversight authority into every aspect of an executive branch policy, program or action, it could arrest and then reverse the headlong expansion of bureaucratic power that has marked federal operations since the New Deal.
Keep an eye on this one.
