The Worst Thing about EPA’s Gambling Addiction . . .

by Mario Loyola

. . . is that it only gambles with other people’s money. But if you get into a legal poker game with it, you stand to lose your shirt, even if you win.

Right now EPA is facing hundreds of lawsuits from private citizens and state governments because of countless rulemakings and orders that barely skirt the edges of legality. The dubious legality of many of those rules and orders is obvious from the start, and EPA knows it’s going to wind up in court. But it doesn’t care because it doesn’t have anything to lose and will advance its agenda win or lose.  

My story up on the homepage today, about EPA’s groundless persecution of one Texas company, will make more than a few readers’ blood boil. One reader commenting suggested that EPA should have to pay the other side’s costs when it loses. What’s really perverse is that the EPA does have to pay the winner’s costs — but only in “citizens’ lawsuits” to force it to regulate or take some action against someone else. Those suits are brought almost exclusively by environmentalists and environmental groups, and usually result in consent decrees. EPA routinely colludes with environmental groups to engineer citizens’ lawsuits and then settle — as a way to skirt formal rulemaking. In other words, if I want to use EPA against someone else, EPA will pay my legal expenses. But when I have to defend myself from EPA, I have to pay my own. 

The worst part of all this is that EPA never has to worry about “litigation risk” — the danger that you may wind up getting sued or having to sue, with all the risks and costs that entails, win or lose. The Department of Justice defends EPA in all the lawsuits it gets itself into. It doesn’t have to pay any penalty when it wastes taxpayers’ money defending orders and rules of dubious legality, and pays no penalty when it loses those suits. Meanwhile, for private parties, penalties for noncompliance with EPA orders can run to the tens of thousands of dollars per day, and can include criminal sanctions. Big companies can afford to wait this out, small companies far less so, and private parties not at all.

Congress should hold hearings on EPA’s increasingly aggressive use of arbitrary emergency and interim compliance orders against private citizens, who are clearly being deprived of liberty and property without anything like what the typical American would consider “due process of law.” The Obama administration has demonstrated that EPA’s arbitrary powers must be curtailed.

— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.

The Corner

The one and only.