EPA’s ‘crucifixion’ enforcement strategy

From Texas Public Policy Foundation, by David Guenthner, May 2, 2012 – Critics of the Environmental Protection Agency often describe it as a job-killing agency. But is crucifixion really among its chosen methods?

Al Armendariz, the EPA’s regional administrator for Texas and surrounding states, resigned Monday after video footage showed him comparing the EPA’s enforcement philosophy to the ancient Roman practice of using public crucifixions to cow the populace in conquered territories.

That Armendariz would fall on his own sword (to use another Roman metaphor) is hardly surprising. But the real problem with his statement was not his poor choice of words, but his completely accurate description of the EPA’s enforcement strategy.

Increasingly, the EPA has employed intimidation, threats and punitive action outside the fundamental restraints on the exercise of federal powers guaranteed by the Constitution. A senior EPA official’s remarks about “crucifying” the first guys that cross their path fits a pattern of disturbing overreach more resembling that of totalitarian regimes than our representative democracy.

Take the EPA’s recent loss before the U.S. Supreme Court in Sackett v. EPA. The Sacketts, an Idaho couple, ran afoul of the EPA by building a house on their two-thirds-acre lot. The agency claimed the land was a protected wetland, threatened them with up to $75,000 per day in fines, and denied them judicial review. The court unanimously rejected this position, but how many other families has the EPA successfully intimidated?

The EPA’s strong-arm tactics have been particularly apparent in Texas. In January 2010, the EPA revoked a key Texas regulatory authority — a flexible permitting program the state has run since 1994. The Texas system allows companies to achieve emissions reductions in creative ways. Despite a statutory requirement that the EPA approve state programs within 18 months, it took no action until 2009 — 15 years after Texas’ application — when it finally disapproved the Texas program. The EPA then sent enforcement orders to current permit holders telling them they were in violation of federal law and must contribute to certain favored community groups.

Or consider the case of Range Resources, a natural gas company. In 2010, the EPA charged Range with methane contamination of two water wells west of Fort Worth and entered an emergency “remedial order” against the company. The EPA officials were soon forced to admit first that there was no proof the methane came from Range’s activities, and second that it could not have.

The agency, however, continued to claim the law didn’t require it to prove or even allege any connection between Range and the contamination. What really mattered wasn’t the source of the contaminated water, but rather that Range had defied the EPA’s authority. Range fought back; after oral arguments that were decidedly hostile to the EPA’s position, the agency dropped the case. But Range’s vindication still cost the company $4.2 million in legal fees.

The EPA seeks to strike fear in the hearts of the public as well as businesses. “Don’t breathe the air, it may kill you,” EPA Administrator Lisa Jackson declared last year on Bill Maher’s HBO show. Though the EPA’s own data show massive improvements in air quality over the last several decades, the agency intimidates the public with grossly unfounded claims that air pollution risks as many deaths as cancer.

Whether with individuals, business, disfavored industries or state governments, the current EPA operates far more as imperious master than as humble agent of the rule of law. Invoking fear of crucifixion (of businesses) or cancer (in people) is a thoroughly inappropriate way to justify overreaching regulation.

The agency should do more than distance itself from talk of crucifixion. The EPA should also stop crucifying. It should return to the confines of the due process guarantees of the U.S. Constitution and federal law.

Kathleen Hartnett White, former chairwoman of the Texas Commission on Environmental Quality, is director of the Armstrong Center for Energy & the Environment at the Austin-based Texas Public Policy Foundation.

 http://washingtonexaminer.com/opinion/op-eds/2012/05/epas-crucifixion-enforcement-strategy/559206

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David Guenthner

Senior Communications Director

Texas Public Policy Foundation

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