Out of Bounds, out of Control: Regulatory Enforcement at the EPA

Out of Bounds, out of Control: Regulatory Enforcement at the EPA

Out of Bounds, out of Control: Regulatory Enforcement at the EPA

Out of Bounds, out of Control: Regulatory Enforcement at the EPA

Excerpt

In theory, enforcement occupies a specific pigeonhole in an orderly regulatory universe. Congress passes a law mandating that specified actions be carried out, or avoided, by organizations and individuals in the private sector. Substantial authority is delegated to an agency, which promulgates rules to elaborate on Congress's intent, resolve unsettled issues, and fill in legal gaps. The agency also establishes mechanisms to monitor and compel compliance—information collection systems, investigators, prosecutors, judges, rules of procedure, and penalty schedules.

If one asks how such an enforcement system is working, the questions are standard. Is it adequately funded? Are the people doing their jobs? Do regulated entities know what is required of them? Are they complying? Are the penalties imposed commensurate with our sense of justice? Is prosecutorial discretion exercised appropriately to allow for extenuating circumstances? Does the institution have a reasonable case selection process, given that it cannot pursue every violator? Are like cases treated alike? Do the institutional arrangements—such as the division of power between Washington and regional offices—foster efficiency and effectiveness? Are the enforcers corrupt, either directly or through political pressure?

These are fair questions to ask about EPA's environmental enforcement procedures, and many analysts have indeed asked them. However, this list of questions is seriously incomplete, because a deeper issue, more important than any of these, is not addressed: Are the agency's enforcement procedures and activities consistent with the rule of law?

The phrase, “rule of law,” is frequently used but seldom defined. F. A. Hayek provided a definition directly relevant to the analysis of EPA regulatory enforcement when he said,

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known . . .

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