Barack Obama derided George W. Bush’s strategy of “going it alone” overseas as “cowboy diplomacy.” Going it alone is the way of this administration’s domestic policy, which ignores Congress and the courts whenever they get in the way. This president does what he wants, when he wants, and expects his flirtatious charm to substitute for vigor and judgment. Someone in search of a stereotype might call this “cowgirl diplomacy.”
The latest assertion of unilateral power comes from the Environmental Protection Agency, which quietly published a rule last week asserting its authority to bypass the courts and even intercept the paycheck of anyone accused of violating an EPA dictate. This would consolidate the bureaucracy’s vastly enhanced authority. The EPA writes the rules, decides who’s guilty and imposes wage garnishment as punishment “without first obtaining a court order.” Judge, jury, executioner and gravedigger.
The EPA cultivates a habit of inventing outrageous interpretations of federal laws. Anyone who exhales is a polluter, given the agency’s classification of carbon dioxide as a form of toxic soot. A toddler’s puddle in a suburban backyard becomes a “navigable waterway” inviting federal regulators to stop in for a visit.
That’s about what happened when a team of badge-wielding EPA bureaucrats descended on Lois Alt’s chicken farm in Old Fields, W.Va. She was told her poultry operation ran afoul of federal rules governing industrial operations. “Manure and other pollutants,” the agency claimed in its order, “would come into contact with precipitation during rain events and generate process wastewater that is carried into the nearby man-made ditches.”
Mrs. Alt points out that the agency made quite a stretch. Her chickens live indoors, safe from “rain events,” in eight large covered buildings. The EPA’s claim is that the incidental manure that one inevitably finds outside a chicken farm’s coop is carried away by rainfall hundreds of yards — uphill — into a tiny creek called Mudlick Run, which the EPA labeled “a water of the U.S.”
Under the threat of $37,500 in fines per day, she was ordered to submit to the EPA’s authority, inviting the bureaucracy to redesign her farm. Instead of complying, Mrs. Alt sued in federal court, convincing the judge that the EPA had twisted the words of the law to convert ordinary farming into a category meant for industrial operations.
The legal fight comes at a heavy cost. Instead of investing in her business, Mrs. Alt has been putting her lawyers’ children through college. The 4th U.S. Circuit Court of Appeals in Richmond heard oral arguments on the case in May and a decision is expected soon.
Those who can’t afford the high cost of justice in the courts are stuck with the EPA’s administrative hearings, where the EPA administrative judge holds all the cards. The Heritage Foundation notes that the new rule enables the EPA to decide unilaterally whether a debtor can present a defense, and, if he can, it’s up to the accused to establish his innocence. Fair play and due process would place the burden on the government to prove its case, but this administration regards itself above constitutional inconvenience.
If the EPA wants to find actual polluters, the agency would head to a courtroom and convince a judge that wage garnishment is appropriate. Government cowboys and even cowgirls sometime get the blues, and this time that’s exactly what they deserve.