Crucify! Crucify!

The EPA was directed to set standards for radi...
The EPA was directed to set standards for radioactive materials under Reorganization Plan No. 3 (Photo credit: Wikipedia)

I know we are still in the season of Easter but this is not an Easter story.  By now you’ve heard the news report of EPA Region 6 Administrator Al Armendariz’ remarks at a local Texas government officials meeting in 2010 where he used a crude analogy to describe his “philosophy of enforcement.”

“It was kind of like how the Romans used to conquer villages in the Mediterranean. They’d go in to a little Turkish town somewhere, 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. You make examples out of people who are in this case not complying with the law … and you hit them as hard as you can” — to act as a “deterrent” to others.”

Apologies have dutifully now been issued disclaiming these remarks and called them out as not reflecting the Administration’s policy on enforcement.  But the reason the video clip went viral is that it rings so true of what many have come to believe is, in fact, the Administration’s policy.

This comes on the heels of a unanimous Supreme Court Decision in Sackett v US EPA where the Court overturned an enforcement order of the EPA which sought to fine a couple thousands per day in civil penalties for the temerity of challenging an EPA decision that building a house on their own property was a violation of the Government’s wetlands policy.  The decision overturned longstanding precedent that enforcement orders must be challenged administratively before an action is taken to court.

The Regulatory Process is Not Serving the Public Interest

These examples are easy to focus on, but the bigger issue is the pervasive, creeping and creepy over reach of regulation that once just strangled the economy but now is being used to pursue a political agenda the Administration has been unable to get approved by the Congress.

There is a de facto war on fossil fuels being pursued by the EPA.  The rush of new regulations is focused on getting as much done in the first term as possible administratively, perhaps out of fear there may not be a second terms or that the Democrats will lose the Senate.

Congress is also to blame big time for this mess.  It writes laws that are vague or ill-considered and leaves it up to bureaucrats to define the details and sort out the problems.  The Code of Federal Regulations now consists of thousands of pages of rules bearing only a vague resemblance to their authorizing legislation.

We can do better than this:

  1. Require that rules must either be incorporated directly into legislation or proposed as a companion rulemaking by affected parties BEFORE Congress passes the law. Force the parties to work out their differences before the law is passed and embody the rules in the law.
  2. Require that EVERY regulation contain a sunset date of not more than 7 years.  The law and every rule adopted pursuant to it should expire unless it is reauthorized by Congress.  This requirement would be applicable to EVERY existing rule which should be subject to sunset review.
  3. Require that NO rule may be proposed without a cost benefit analysis based upon standard objective criteria applicable to all regulation for calculating cost and benefits.  No rule may be published if the results of the cost benefit analysis show that the costs outweigh the benefits.  The cost benefit study may be challenged as not meeting the standard objective criteria before an Administrative Law Judge to decide whether the rule meets the cost benefit test.
  4. Require that Congress much approve EVERY regulation imposing a cost of more than $100 million on an up or down vote to be taken within 90 days of submittal of the rule to Congress or else it is automatically rejected.

These steps would clarify that regulations are designed to cost effectively and fairly implement specific policies adopted by Congress.  It clarifies that rules are not a separate process for pursuing political agendas.  It levels the playing field giving business an equal opportunity in the rule making, enforcement and sunset review process with other interest groups.  It forces ALL SPECIAL INTERESTS to work out their differences BEFORE laws are passed and rules proposed or have those interests framed to be decided in an up or down vote for all to see.

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1 Comment

  1. Hello there! This blog post could not be written any better!
    Looking through this article reminds me of my previous roommate!
    He always kept talking about this. I’ll forward this article to him. Fairly certain he will have a good read. Thank you for sharing!

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