The EPA Abuses First, Apologizes Later
The regulatory state’s biggest bully beats up another victim.


Mario Loyola

Last summer, I wrote about the Environmental Protection Agency’s shameful persecution of a Texas natural-gas company, Range Resources Corp. The year before, EPA had slapped the company with an “emergency order” under the Safe Drinking Water Act, alleging that it “caused or contributed to” the contamination of two water wells west of Fort Worth. Almost immediately, however, EPA was forced to admit that Range had no connection whatsoever to the contamination in question. It nonetheless insisted on the company’s obedience to the original order.

I argued then that this was all a shameful abuse of power. Well, just last week, after a nearly two-year odyssey in which the company has spent $4.2 million defending itself, EPA agreed to drop the whole thing. The withdrawal of the emergency order was officially announced at the end of last week, where the government usually tries to bury its embarrassments. But the question remains: Why now?

EPA should never have issued the order in the first place. From the start, EPA staff admitted that they had no theory of how methane could have migrated into the shallow aquifer in question from Range’s natural-gas well a mile underground. It quickly became clear that the methane in the aquifer had migrated naturally from an entirely different geological formation than the one from which Range was pumping gas, and that the area’s water wells had long contained small quantities of natural gas. Texas regulatory authorities, which conducted their own vastly more professional investigation in short order, concluded that Range was not related to the gas contamination in any way.

Rather than withdrawing its order at any of these points, EPA’s regional office raised the ante, seeking enforcement of the original order, along with fines that soon totaled millions of dollars. Confronted with incontrovertible evidence that the source of the gas had nothing to do with Range Resources, EPA claimed that the law didn’t require it to prove or even allege any connection between Range and the contamination.

Strictly speaking, that astonishing position appeared to be correct. Under Section 1431 of the Safe Water Drinking Act, the EPA administrator may “take such actions as he may deem necessary” when he knows of a possible contamination of drinking water, including “issuing such orders as may be necessary to protect the health of persons.” Among the key things left unclear in the statute is, well, almost everything: (a) exactly what group of people can be compelled to do something under that emergency order; (b) what they can be compelled to do; (c) what EPA must establish to have a reasonable basis for its order; and (d) what the target of the order can do to challenge it.

The statute is so vague that the only natural way to read it is as a grant of power for EPA to commandeer anybody — totally at random if EPA so chooses — and force him to clean up, at his own expense, a problem that he can immediately prove he had nothing to do with.