Danner: NFIB Wins Round 1 Against EPA, but there Is More Ahead

Date: July 16, 2015

NFIB recently won a major victory for small business owners in the U.S. Supreme Court, which stopped a new EPA rule aimed at shutting down electricity producers and jacking up utility rates for consumers, including small businesses. 

The case, Michigan vs. EPA, involved a massive new clean air regulation that would have required energy producers to spend billions of dollars retrofitting plants or closing them down to remove mercury from the emissions. In drafting the regulation the EPA flagrantly refused to perform an economic impact analysis. NFIB and a number of states argued that in in refusing to perform the analysis the agency violated a federal law mandating that regulators estimate how new rules will affect American small businesses before they go into effect.

Justice Antonin Scalia, who wrote for the majority, noted that the EPA tried half-heartedly to estimate the economic costs but only after the rule was finalized. He described as “irrational” a regulatory policy that heaps billions of dollars in new costs on the economy with only a fraction of the benefits. We couldn’t agree more. 

You’ll see that argument again, this time as part of our fight against the EPA’s massive new clean water rule. As you may know, the agency this summer gave final approval to a major expansion of the Clean Water Act, passed originally in the 70’s as a way to regulate navigable waterways like rivers and streams. Under the new rule, the EPA claims jurisdiction over any water, anywhere, including back-yard streams, farmers’ ponds and nameless creeks on private property. As you can imagine, this is a potential back-breaker for small businesses. Even the smallest property improvement or project will now require federal environmental permits, which can cost tens of thousands of dollars. If the EPA refuses the permits, those projects are sunk. And if a small business owner is found in violation, the fines and legal expenses can be devastating. 

Here’s the rub: In finalizing the new Waters Rule the EPA once again refused to perform the mandatory economic analysis. NFIB and other business groups protested loudly, but the agency plowed ahead. It argued, incredibly, that the new rule will have no direct impact on small businesses. No one is buying that, including the SBA Office of Advocacy, which earlier this year petitioned the EPA to withdraw the rule because of the potentially enormous burden it will place on small businesses.

NFIB has now filed legal action against the EPA on the Waters Rule. We’re prepared for a major fight over this administration’s regulatory overreach, and we are very encouraged by the Supreme Court’s recent decision forcing the agency to finally obey the law. The EPA is out of control, and on behalf of America’s small business owners NFIB has drawn a line in the sand. Federal regulators can’t be allowed to ignore the laws they don’t like and make up for themselves new powers that aren’t granted by Congress. 

For more developments in this case and to take action please visit NFIB.com/waters.


Dan Danner, NFIB President and CEO

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Dan Danner, Former NFIB President and CEO

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