First, in a unanimous opinion on the Sackett case the Supreme Court spanked the EPA for their attempts to browbeat taxpayers into submission by compounding fines while at the same time delaying access to judicial review.
Now a former EPA General Counsel during the Clinton administration calls for wholesale reform of the Agency itself. In The Case for Trimming the EPA, published in the Atlantic, E. Donald Elliot, adjunct professor of law at Yale Law School and holder of the first endowed chair in environmental law and policy at any major American law school, argues the current system is a mess. Elliot, who also advises business clients, writes of one outmoded set of regulations:
I had to advise a distillery to stop saving energy by burning its own alcohol waste, and instead to dump it into the ocean. They had to replace the heat value with imported foreign oil. The alcohol waste was considered "hazardous waste" because it was "ignitable," and it was illegal at that time to burn hazardous waste. In other words, it was illegal to burn it because it would burn!
Elliot misses the best part. Had it been made in a different plant that very same substance probably would have been eligible for government subsidies for ethanol!
I disagree with Elliot's priorities for a revamped EPA and his reliance upon a consensus among experts, who are often all too prone to groupthink, He is, however, spot on with his diagnosis of part of the problem:
Many of our environmental laws still command the Environmental Protection Agency (EPA) to eliminate pollution without regard to economic or job costs. They put the EPA on autopilot churning out one rule after another without heed to cost or competing values. Today in some (but not all) EPA rules, we spend huge sums chasing tiny risks that probably don't actually exist and thereby kill jobs and steal from the poor.
We are victims of our own success. Rivers no longer catch fire and our air is cleaner. But the EPA is just as large as it ever was, and it has developed ever more effective and intrusive regulatory techniques with the advent of computers and modeling.