Commentary Magazine


Topic: EPA

An Increasingly Autocratic EPA Encounters a Roadblock

Conservatives who have come to view the Supreme Court led by Chief Justice John Roberts with contempt in recent years had that belief vindicated by a variety of decisions the Court handed down this term. The Court bent over backward and virtually rewrote the statute (again) in order to preserve the Affordable Care Act. It found a constitutional right to same-sex marriage whereas no such right to heterosexual marriage exists in that same document’s ever-evolving penumbra. Though the Supreme Court determined that the use of lethal injection drugs by the state did not violate the constitution, a handful of liberal justices concluded that the practice of capital punishment authorized in the Fifth Amendment suddenly violated the Eighth. In the future, a majority of the nine in black who are apparently so susceptible to societal pressure might soon agree with what is at present a minority opinion. But the Court gave forlorn conservatives at least one reason to smile at the end of this term. In a 5-4 decision in Michigan v. EPA on Monday, the Supreme Court correctly addressed a matter genuinely outside the voters’ control: the rapid expansion of the regulatory state. The Court’s decision in a case involving a pervasive proposed regulation from the Environmental Protection Agency could inaugurate a process of curtailing the power of America’s unelected bureaucracy.  Read More

Conservatives who have come to view the Supreme Court led by Chief Justice John Roberts with contempt in recent years had that belief vindicated by a variety of decisions the Court handed down this term. The Court bent over backward and virtually rewrote the statute (again) in order to preserve the Affordable Care Act. It found a constitutional right to same-sex marriage whereas no such right to heterosexual marriage exists in that same document’s ever-evolving penumbra. Though the Supreme Court determined that the use of lethal injection drugs by the state did not violate the constitution, a handful of liberal justices concluded that the practice of capital punishment authorized in the Fifth Amendment suddenly violated the Eighth. In the future, a majority of the nine in black who are apparently so susceptible to societal pressure might soon agree with what is at present a minority opinion. But the Court gave forlorn conservatives at least one reason to smile at the end of this term. In a 5-4 decision in Michigan v. EPA on Monday, the Supreme Court correctly addressed a matter genuinely outside the voters’ control: the rapid expansion of the regulatory state. The Court’s decision in a case involving a pervasive proposed regulation from the Environmental Protection Agency could inaugurate a process of curtailing the power of America’s unelected bureaucracy. 

In the Obama era, the EPA has been defined not as an institution designed to safeguard public health but to sabotage the American economic engine in the name of vague and ill-defined climatological concerns. To that end, the agency was authorized to regulate mercury, arsenic, and acid gasses emitted by coal-fired power plants. In practice, the move was almost explicitly designed to accelerate the process of mothballing America’s coal-fired power plants. The EPA gave no consideration to the costs incurred by firms trying to meet its new regulatory guidelines. The House GOP’s measures introduced in 2011 that were designed to reduce the technological thresholds industrial facilities would be required to meet to comply with the EPA rules never made it out of Congress. On Monday, the Court put a halt to the implementation of this rule that was expected to cost nearly $10 billion. By some estimates, they would have raised the costs of electricity by as much as $1,200 per year for every American household.

The majority opinion, authored by Justice Antonin Scalia, found that the EPA “unreasonably” interpreted the Clean Air Act to constitute a vehicle by which the environmental regulatory agency could institute new guidelines that were all but overtly aimed at shuttering “dirty” power plants. “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants,” the opinion read. That’s significant; contrary to the wealth of shallow emotionality that suffices for modern political commentary, profits matter. Individual livelihoods and the economic health of the nation are still protected by the Constitution, and they should not be subordinated to environmental sustainability in the zero-sum game that has become America’s regulatory culture.

In her dissent, Justice Elena Kagan scolded her colleagues for engaging in the “micromanagement of EPA’s rulemaking.” The justice’s newfound concern for judicial restraint is heartrending, but her admonition is doubly ironic. It’s fitting that an agency that views as its mission micromanaging whole industries to death would itself become the target of meddlers. The agency founded to protect America’s natural landscapes and safeguard the public from disreputable polluters has instead transformed into a revolutionary advocacy organization that wields immense power and recklessly deploys it against its perceived enemies.

Coal is not the agency’s only target. The improved exploitation of oil and natural gas in America that has resulted from the development of new technologies and extraction processes has proven uniquely vexing for this regulatory agency. The EPA tightened the rules on firms engaged in hydraulic fracturing (“fracking”) in March that required them to disclose the proprietary chemicals used in the process and to build large barriers to protect nearby water sources. Three months later, the agency’s own study of the practice found that water contamination as a result of fracking was neither “widespread” nor “systemic.” The agency’s new rules were a solution in search of a problem. That is, unless one views the problem as the practice of fracking itself.

Nor is curtailing industry the EPA’s only infringement on American liberties. In 2008, Idaho couple Mike and Chantell Sackett purchased a plot of land near their home in Idaho with the intention of building a new structure. After obtaining all the necessary local permits, the EPA halted their project and they were told to restore the land they had purchased to its pre-construction state or face thousands of dollars in fines. It turned out that the couple was building on what the EPA determined were protected wetlands, despite the fact that it had already been built upon and was purchased with a pre-installed sewer main. After four years, the Supreme Court of the United States unanimously ruled the EPA had unilaterally seized property and arbitrarily dubbed it “wetlands” after the fact.

“[T]he agency ought to have asked itself years ago whether it really needed to hassle a couple seeking to build a home in an existing subdivision, helping to justify every negative caricature of the EPA that Republican presidential hopefuls peddled during the primary race,” The Washington Post‘s editorial board advised. “Perhaps the agency would have been able to keep more of its regulatory power if it had been more judicious.” That admonition has surely fallen on deaf ears at the EPA. In May, the agency just expanded its regulatory authority over waterways to include small ponds, those subjectively defined “wetlands,” and agricultural irrigation ditches, none of which run off into navigable waterways.

In 2010, senior EPA official Al Armendariz resigned after he was discovered to have said that his agency’s philosophy toward polluters should be similar to the Roman practice of mass and indiscriminate crucifixion in order to tamp down rebellion. It was a window into the dominant line of thought that pervades this bureaucracy, one of the most onerous members of America’s vast and expanding regulatory rubric. Armendariz resigned in disgrace, but the mentality he identified still prevails at the agency he once helped to manage. In a small victory for individual liberty and state sovereignty, the Supreme Court narrowly curtailed the growing power of America’s most intrusive regulatory agency. If history is any guide, however, these gains will be temporary and elusive unless the agency’s reform becomes a political priority for the next Republican administration.

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