01 Sep 2003 Leavitt Versus the Leviathan: Not So Much the Confirmation Process, But the EPA Itself

Mike Leavitt deserves to be confirmed as administrator of the Environmental Protection Agency, not so much because he’s a famous consensus-builder but because, in trying to be one as governor of Utah, he learned that environmental organizations can never, ever be satisfied.

Knowing this, as incoming EPA administrator, Leavitt is relieved of two burdens: first, of spending too much time trying to satisfy a constituency – the largely left-wing environmentalist movement – that can never be pleased, and, second, of the expectation that he’ll ever get credit from environmentalists for doing any good, even if he does a top-notch job.

As Ronald Reagan used to say, there’s no limit to the good you can do if you don’t care who gets the credit. Or, as is inevitable in this case, the blame.

Free from worrying about his press notices, Leavitt can get right down to the job.

As an 11-year governor and former chairman of the National Governor’s Association, Leavitt brings another quality to the job: experience in dealing with bureaucracies. The EPA needs to be tamed.

As writer James V. DeLong put it in his 2002 book, Out of Bounds, Out of Control: Regulatory Enforcement at the EPA:

EPA enforcement policy certainly does not comport with the rule of law. The full array of environmental regulation is so detailed, obscure and all-encompassing that no regulated entity can possibly ascertain and maintain full compliance with all mandates at all times. In consequence, EPA maintains broad discretion to define what is and is not a violation of the law. It fights vigorously to avoid any checks on this discretion. It often exercises its discretion retroactively or arbitrarily. It makes examples of people who dispute the agency’s interpretation of power or who express doubts about the absolute primacy of EPA’s mission… EPA also blurs lines that separate legislative, executive and adjudicatory functions. Using its vast powers to “interpret” vague statutes, it makes the laws that define its own powers, then investigates, prosecutes, adjudicates, and penalizes. Judicial checks are weak and sporadic. This panoply of power breeds regulatory zealotry and a disregard for the rights of the regulated.1

Though strict about the laws it enforces, the EPA follows a different path when it comes to following the rules itself.

Columnist Jay Ambrose tells this story, citing research from George Mason University:

It seems the EPA wanted to spend $18 million to save $80,000 worth of fish from being killed by power plants. Because the regulation would be a violation of cost-benefit rules, officials revalued the fish in accordance with the presumed enjoyment they give as wildlife instead of their commercial price as food, bringing their supposed worth to higher than the $18 million. What struck me is that these officials were attempting an absurd end run around the rules they are supposed to honor in order to force their values on others. The wasted money would obviously mean hurt in human lives. Abuses of this kind underline that even our brilliantly conceived arrangement of republican government, with its system of checks and balances, can stumble badly if those in positions of high trust refuse to stay within clearly established boundaries.2

The EPA even flouts the authority of Congress.

For over a decade, the EPA has been trying to set a standard for safe exposure of dioxin that is so low a single serving of Ben and Jerry’s vanilla ice cream contains 2,000 times more dioxin than the EPA deems safe.3

But before you toss away your ice cream, be aware that the EPA is conspiring to acquire authority over a naturally occurring (as well as man-made) substance that is pretty much everywhere (including in much of the food we eat), simply to increase its own power.

Knowing this, two years ago, as part of the budget process, Congress asked the EPA to contract with the National Academy of Sciences for an independent, science-based review of dioxin’s effect on humans. The EPA ignored this reasonable request, so a year later, Congress asked again – without result.4 The EPA simply doesn’t want the expert scientific opinion of the National Academy of Sciences to get in the way of a power grab.

The EPA needs a strong hand, and a former three-term governor with a reputation as a strong leader is as likely as anyone to be able to provide it.

Thanks to the support of governors from both political parties, Leavitt’s appointment is likely to survive a grueling confirmation process that will be characterized more by environmentalist attacks on President Bush than on the nominee’s ability to run the EPA the way a responsible agency should be run.

Confirmation, however, will be the easy part. Reforming the EPA is the challenge.

Amy Ridenour is president of The National Center for Public Policy Research, a Washington, D.C. think tank.

Footnotes:

1 James V. DeLong, Out of Bounds, Out of Control: Regulatory Enforcement at the EPA, Cato Institute, Washington, D.C., page viii

2 Jay Ambrose, “Something to Protest,” Modesto Bee, August 14, 2003, available online at http://www.modbee.com/24hour/opinions/story/969087p-6795675c.html as of August 25, 2003.

3 Steve Milloy, “A Scoop of Debunkey Monkey, Please,” FoxNews.com, July 8, 2000, available at http://www.junkscience.com/foxnews/fn081800.htm as of August 25, 2003.

4 Steve Milloy, “EPA Ignores Congress in Power Grab,” FoxNews.com, August 22, 2003, available online at http://www.foxnews.com/story/0,2933,95498,00.html as of August 25, 2003.