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KNIGHT: Taming the EPA monster

Supreme Court ruling strikes a blow in ongoing battle

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Slowly, inexorably, the monster is being driven back to its lair. Its days of terrorizing villagers may soon be over. I wish I were talking about the federal government, but it's the Environmental Protection Agency (EPA), better known as the Environmental Protection-or-else Agency.

At one time, it was a harmless little back-alley operation that stumbled upon a secret growth formula, downed the whole vat and began wreaking havoc. You won't find this account on the EPA's official website, but you will find ample evidence of the monster's ambitions to control the world, such as its quest for "environmental justice."

On Wednesday, the U.S. Supreme Court slapped the monster right across the chops in Sackett v. EPA. An Idaho couple, Chantell and Mike Sackett, were building a home but fell victim to an EPA compliance order in 2005. Their building permit was revoked after the EPA charged that they had violated the Clean Water Act by filling in their lot with rocks and dirt.

"The Sacketts were denied any hearing to contest the Compliance Order by the EPA," American Civil Rights Union general counsel Peter Ferrara wrote in a friend-of-the-court brief in the case. "[T]he Sacketts can ignore the EPA's Compliance Order . . . That course entails incurring EPA fines of as much as $750,000 per month, $9,000,000 for a year."

The court's unanimous decision, which overturns - yet again - a wacky 9th Circuit ruling, will allow the Sacketts to appeal the order in court instead of going through a lengthy, expensive wetlands-permit process. They might still lose, but at least they won't be bankrupted fighting a tyrannical bureaucracy.

Created on Dec. 2, 1970, the EPA began with an executive order from President Nixon that combined several clean-water and other anti-pollution agencies into one basket. The full Congress never officially approved the monster's creation, although the plan was vetted by Senate and House committees.

The newborn EPA had a budget of just more than $1 billion and 4,084 employees. Not bad for a startup.

This past week, EPA Administrator Janet P. Jackson told two House Energy and Commerce subcommittees that the EPA's 2013 budget request is $8.3 billion, a 1.2 percent decrease from 2012. The agency has 17,000 employees.

This is pocket change and a volleyball team compared to other federal agencies. But over the years, despite its relatively small size, the EPA has acquired vast powers.

Just after Earth Day came into being, Congress enacted a slew of environmental laws, including the Clean Water Act (1972), Coastal Zone Management Act (1972), Marine Protection Research and Sanctuaries Act (1972) and Endangered Species Act (1973). "The Rules and Regulations issued under these laws numbered into many thousands," an official EPA history states. "In its early years EPA alone placed about 1,500 rulemaking notices in the Federal Register annually."

Some of them did a lot of good. Smokestack industries could no longer pour tons of pollutants into the air and water. The Hudson River, which was declared an open sewer in the 1960s, bounced back smartly.

Emboldened, the EPA kept growing. A big breakthrough came in 2007, when the Supreme Court, whose justices moonlight as scientists, found that carbon dioxide, which we breathe out, was a "greenhouse gas" the EPA could regulate.

In 2009, President Obama's EPA announced a massive campaign to thwart "climate change." I'm told that deep within the bowels of the EPA complex in Washington's Federal Triangle is a diabolical plan to fit us all with muzzles, but this probably is just a rumor.

The good news is that the EPA's greenhouse gas limits are being weighed this month by the U.S. Court of Appeals in the District.

Meanwhile, nine state attorneys general - Tom Horne of Arizona, Pam Bondi of Florida, Sam Olens of Georgia, Bill Schuette of Michigan, Scott Pruitt of Oklahoma, Marty J. Jackley of South Dakota, Alan Wilson of South Carolina, Greg Abbott of Texas and Kenneth T. Cuccinelli of Virginia - have announced a major push-back against unconstitutional overreaches by the Obama administration, including the EPA.

"In Florida, a state with one of the most aggressive and innovative water-quality-protection programs in the country, the EPA chose to impose its own costly, unprecedented and unscientific numeric nutrient criteria," the attorneys general's statement says. "The estimated impact the EPA's rules would impose was dramatic, including billions of dollars in compliance costs, significant spikes in utility bills and the loss of thousands of jobs. The Florida Attorney General's Office sued the EPA and two weeks ago prevailed when a federal judge in Tallahassee threw out the costliest of the EPA's rules, the one governing Florida's streams and rivers. In doing so, the judge found the EPA's rules were not based on sound science.

"In Oklahoma, the EPA illegally usurped Oklahoma's authority in the Clean Air Act to determine the state's own plan for addressing sources of emissions by imposing a federal implementation plan. The federal plan goes beyond the authority granted to the EPA in the Clean Air Act and will result in a $2 billion cost to install technology needed to complete the EPA plan and a permanent increase of 15-20 percent in the cost of electricity. The Obama Administration is fighting Oklahoma's appeal, which was filed in the Tenth Circuit Court of Appeals."

Texas has filed a lawsuit challenging the Cross-State Air Pollution Rule. The attorneys general note that the EPA's order was "particularly dubious because the state was included in the regulation at the last minute and without an opportunity to respond to the proposed regulation" and "was based on a dubious claim that air pollution from Texas affected a single air-quality monitor in Granite City, Illinois, more than 500 miles and three states away from Texas."

As Congress sharpens its budget knife, the EPA monster, which started out as a well-meaning bloke but grew into a bullying monster, may find that overstepping its power is hazardous to its own health.

Robert Knight is a senior fellow for the American Civil Rights Union and a columnist for The Washington Times.

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