An EPA regional director recently talked of the utility of "crucifying" oil and gas producers, apparently without much concern for whether they were actually violating any law. The Administrator quickly stated that this was not agency policy, and the official himself wound up on the cross of resignation.
Actually, quixotic in terrorem enforcement is EPA policy, and has been for years. Ten years ago, I wrote a short book for the Cato Institute, Out of Bounds and Out of Control: Regulatory Enforcement at the EPA (Cato 2002)(available as an e-book). The description:
The philosopher F. A. Hayek said: "Stripped of all technicalities, [the phrase 'rule of law'] means that the government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and plan one's individual affairs on the basis of this knowledge."
Out of Bounds,Out of Control measures the enforcement activities of the Environmental Protection Agency against that standard and finds them disturbingly deficient. Environmental regulation is so detailed and obscure that no one can identify all relevant mandates, let alone ensure compliance. EPA maintains broad discretion to define legal violations and resists any checks. Discretion is exercised retroactively or arbitrarily. People fear to dispute the agency's interpretation of its power or express doubts about the absolute primacy of its mission lest they be made into examples. The concept of "intent" has become so attenuated that it provides no limitation on prosecution.
EPA also blurs the lines separating governmental powers. Using its open-ended authority to "interpret" vague statutes, it makes the laws that define its own powers, then investigates, prosecutes, adjudicates, and penalizes. Judicial checks are sporadic. This panoply of authority breeds regulatory zealotry and a disregard for the rights of the regulated.
The book, however, is more than a sobering look at a legal theory. In story after story, specific regulatory abuses are examined, many of which are positively Kafkaesque. Moreover, many of the problems documented in the book are pandemic across the government. The ultimate lesson to be drawn is that deep structural reform is needed to restore the rule of law to administrative agencies.
So the recent stories sound like the same old EPA. Only this time, it got caught. Usually, the agency hides its policies behind a murk of complicated administrative law doctrines that baffle the MSM, and the public.
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James V. DeLong (jvdelong@comcast.net) is the author of Ending 'Big SIS" (The Special Interest State) and Renewing the American Republic, to be available as an e-book in June.
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