Friday, January 11, 2013

The EPA: The Worst Of Obama's Out Of Control Regulatory Bureaucracy

As I have written before, the single greatest systemic crisis we face is a regulatory bureaucracy operating extra-constitutionally outside of Congressional control. And the worst of the worst is the EPA. Two recent stories highlight the EPA's vast overreach under Obama.

This from Reason:

In accusing the Environmental Protection Agency of trying to regulate “water itself as a pollutant,” Virginia Attorney General Ken Cuccinelli is not showing an excess of exactitude. But his looseness is rhetorical and harmless. The EPA’s is neither.

Last week federal judge Liam O’Grady sided with Cuccinelli when he ruled that the EPA had overstepped its bounds. As a measure of just how far the EPA had overreached, note that Cuccinelli’s suit against the EPA was joined by Fairfax County, led by Board of Supervisors chairman Sharon Bulova.

Bulova, a Democrat, is nobody’s idea of an environmental menace. A longtime advocate for commuter rail and mass transit, she started a Private Sector Energy Task Force to increase energy efficiency, sustainability, and “green-collar” jobs in the county. Nevertheless, she and other county leaders objected when the EPA tried to limit the amount of stormwater runoff into the 25-mile-long Accotink Creek, which empties into the Potomac. “When people talk about federal agencies running amok, this is exactly what [that] looks like,” said GOP Supervisor John C. Cook in July. “The EPA’s overreach is so extreme that the Democrats on the board realized that, even in an election year, they had to do this for the county.”

Concerned about sediment in the Accotink, the EPA had sought to cut stormwater runoff nearly in half—a proposal that would have added perhaps $200 million to the roughly $300 million cost of addressing sediment itself.

But as O’Grady noted, while the EPA can regulate sediment, which is considered a pollutant, it has no authority to regulate stormwater—which is not.

The EPA claimed—notably, “with the support of Virginia[‘s Department of Environmental Quality]”—that it could regulate stormwater as a proxy for sediment itself, even though it had no legal authority to do so, because nothing explicitly forbids it to do so. As Cuccinelli said, “logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.”

Why would the EPA insist on regulating stormwater, which it has no authority over, instead of simply regulating sediment? After all, it has written rules for sediment literally thousands of times. That insistence makes no sense. But it does look like part of a larger pattern.

Last spring, the Supreme Court ruled against the agency in the case of Mike and Chantell Sackett. The Sacketts owned a piece of land, a little larger than half an acre, in a growing lakefront development in Idaho. They were building a vacation home on the spot when the EPA declared it might be a wetland and ordered them to cease construction, and restore the land to its prior state or face fines of up to $75,000 a day. The agency decreed that the Sackettshad no right to challenge the order in court.

The Supreme Court unanimously call that bunk. It’s not easy to get Justices Antonin Scalia and Ruth Bader Ginsberg on the same page, but the EPA managed to do so. The agency also drew the wrath of The Washington Post, which editorialized that “The EPA Is Earning a Reputation for Abuse.” The editorial began by condemning the now-infamous remarks of now-former EPA administrator Al Armendariz, who compared his enforcement philosophy to Roman crucifixions: “They’d find the first five guys they saw and they’d crucify them. And then, you know, that town was really easy to manage for the next few years.”

Troubling stories about the EPA just keep piling up. In Texas, the agency went after Range Resources Corp. for allegedly polluting two wells. The company racked up more than $4 million in fees defending itself before the EPA grudgingly admitted it had no proof Range Resources had contaminated anything.

In July, the federal district court in D.C. ruled that the EPA had overstepped its bounds regarding Appalachian coal operations. That ruling followed another concluding the EPA had no business revoking a waste-disposal permit, issued by the Bush administration, for a West Virginia mine. Judge Amy Berman Jackson—an Obama appointee—called the agency’s action “a stunning power for the EPA to arrogate to itself,” and accused the agency of “magical thinking.” . . .

One of the things that makes the EPA's decision to claim the power to regulate storm water run off as a pollutant particularly outrageous is that, during 1986 amendments to the Clean Water Act, Congress considered whether to give EPA this power and opted against it. The EPA just unilaterally decided that they could claim the power under Obama. These people need to be tarred and feathered.

Moreover, one of the examples the Reason column misses in their list of recent EPA outrages is the EPA's decision to circumvent the normal process set down by law and instead, to rely on wholly hypothetical scenarios to deny a permit to the Pebble Mine in Alaska:

The Environmental Protection Agency's efforts to bypass normal regulatory procedures to stop a mining project in a remote part of Alaska could have profound implications for domestic mining across the U.S., according to Dr. Bonner Cohen in a scathing new report, "The EPA's Pebble Mine Assessment Puts Politics Above Sound Science."

The report . . . has been submitted to the House Oversight and Government Reform Committee for use in an investigation of the EPA related to the proposed Pebble Mine project.

"Pre-empting the permitting process, EPA issued an assessment on the possible impact of Pebble Mine on Alaska's Bristol Bay watershed before the project's developers had even submitted a formal plan to government agencies for approval," stated Dr. Cohen.

Using a "Hypothetical Mine Scenario" based on a fictional mine, the EPA created an "ecological risk assessment." According to Dr. Cohen, the EPA then drew far-reaching conclusions on the mine's impact, bypassing and preempting a permitting process that is supposed to review real plans for real mines, not imaginary ones.

. . . Charles Slaughter, a hydrologist at the University of Idaho, called the EPA process "pure hogwash."

"By circumventing the well-established permitting process, EPA undermines the trust of the entities it regulates and taxpayers who provide the agency's funding," Dr. Cohen points out. "Once the precedent is set that EPA can preemptively shut down any mining project before plans are submitted for permit review, what investor will risk time and capital in a doomed effort to win a regulatory game EPA has rigged?"

The proposed Pebble Mine has the potential to triple America's strategic reserves of copper and more than double her strategic reserves of gold. It could also nearly double America's reserves of molybdenum, allowing the U.S. to rival China as a global leader in the production of this critical metal used to harden steel for U.S. manufacturing and construction industries. Dr. Cohen's informative report details how the EPA stifles vital business activity by preempting the permitting process through the creation of imaginary, hypothetical business scenarios. . . .

The EPA is the worst of the out of control regulatory agencies under Obama. It is an organization under the control of radicals with no respect for the limitations imposed on them by law.

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