Note: This article originally appeared at National Review Online on April 4, 2012.
…is that it only gambles with other peoples 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 its going to wind up in court. But it doesnt care because it doesnt have anything to lose and will advance its agenda win or lose.
My story up on the homepage yesterday, about EPAs 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 sides costs when it loses. Whats really perverse is that the EPA does have to pay the winners 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 EPAs 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.