As EPA sought enforcement and penalties in district court, the company filed a petition for review of the original order at the Fifth Circuit Court of Appeals, which heard oral argument in the case in October of 2011. The tenor of that oral argument (listen to it here) suggests one reason that EPA decided to withdraw the order: the fear that it might lose its emergency-order authority under the Safe Drinking Water Act altogether.
The company’s lawyers restricted themselves to arguing that Section 1431 was unconstitutional only “as applied” to them. But the three-judge Fifth Circuit panel was much tougher on EPA, and focused instead on what EPA thought it had the power to do under the law. The tenor of the oral argument was such that EPA must have been worried that Section 1431 might get struck down entirely, as unconstitutional on its face, not just ruled unconstitutional as applied to Range Resources.
It’s easy to understand why. The company’s lawyers argued that the order was arbitrary and capricious as it applied to them, but in fact emergency orders under Section 1431 will be arbitrary and capricious in virtually every case, because of the way the statute is written. It is almost impossible to know, for example, who is subject to the statute. Even if EPA had procedures in place to guarantee minimum due process for emergency orders (which it doesn’t), you would still have a statute that is not limited in any way to people connected with any contamination. EPA can issue emergency orders to anybody.
The Supreme Court’s recent decision in Sackett v. EPA, which insisted that citizens hit with an EPA order must have their day in court, may also have weighed heavily on the EPA. At the very least, the justices seem finally awake to the grave danger that EPA’s emergency and remedial authorities pose for the due-process rights of private citizens. That subtext to the Sackett opinion is one that the lower courts (who try to avoid being overruled) can read as clearly as EPA.
Congress should subpoena Al Armendariz, the EPA’s regional administrator, to come explain how this whole fiasco happened. Congressional hearings on the case of Range Resources and others like it will quickly reveal the need to curtail the EPA’s statutory authorities and put a stop to its increasingly brazen abuses.
Range Resources has in essence been deprived of $4.2 million dollars, not to mention the damage to its reputation, without due process or recourse of any kind. Many environmentalists apparently think oil and gas companies shouldn’t have due-process rights and deserve to be targeted for arbitrary abuse by the authorities. But as the case of the Sacketts shows, the EPA’s next victim could be any one of us.
— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.