Out Of Bounds, Out Of Control: Regulatory Enforcement At The EPA CEI Senior Fellow James DeLong Publishes New Book With The Cato Institute
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Publisher: The Cato Institute Publication Date: September 24, 2002 Price: $16.95 ISBN #1-930865-30-9
The philosopher F. A. Hayek said: "Stripped of all technicalities, [the phrase 'rule of law'] means that the government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and plan one's individual affairs on the basis of this knowledge."
Out of Bounds, Out of Control measures the enforcement activities of the Environmental Protection Agency against that standard and finds them disturbingly deficient. Environmental regulation is so detailed and obscure that no one can identify all relevant mandates, let alone ensure compliance. EPA maintains broad discretion to define legal violations and resists any checks. Discretion is exercised retroactively or arbitrarily. People fear to dispute the agency's interpretation of its power or express doubts about the absolute primacy of its mission lest they be made into examples. The concept of "intent" has become so attenuated that it provides no limitation on prosecution.
EPA also blurs the lines separating governmental powers. Using its open-ended authority to "interpret" vague statutes, it makes the laws that define its own powers, then investigates, prosecutes, adjudicates, and penalizes. Judicial checks are sporadic. This panoply of authority breeds regulatory zealotry and a disregard for the rights of the regulated.
The book, however, is more than a sobering look at a legal theory. In story after story specific regulatory abuses are examined, many of which are positively Kafkaesque. Moreover, many of the problems documented in the book are pandemic across the government. The ultimate lesson to be drawn is that deep structural reform is needed to restore the rule of law to administrative agencies.
James V. DeLong is a senior fellow in the Project on Technology and Innovation at the Competitive Enterprise Institute in Washington, D.C. He is the author of Property Matters: How Property Rights Are under Assault-And Why You Should Care, published by the Free Press.