The EPA is Spying on You (if you’re a farmer)

Yet another news story pointing out that our beloved bureaucrats running the Environmental Protection Agency have an overinflated sense of self-importance. Straight from the important sounding World-Herald Bureau in Omaha, Nebraska:

Snapping photos of livestock farms from an airplane is a legal and cost-effective way to help protect Nebraska and Iowa streams from runoff contamination, say officials with the U.S. Environmental Protection Agency.

The agency’s aerial surveillance program came under scrutiny last week when Nebraska’s congressional delegation sent a joint letter to EPA Administrator Lisa Jackson. The elected officials asked Jackson to reply by June 10 to a list of 25 questions, including whether federal law allows such surveillance.

So we have the EPA now running a drone program, flying around the midwest snapping photos of local farms. When asked whether they have the authority to conduct surveillance, the EPA responded thusly:

“Courts, including the Supreme Court, have found similar types of flights to be legal (for example to take aerial photographs of a chemical manufacturing facility) and EPA would use such flights in appropriate instances to protect people and the environment from violations of the Clean Water Act,” the agency said in response to a question about legality.

Of course the EPA has the authority to conduct surveillance of individuals, says the EPA.

Lest anyone be confused, I’m all for aerial/satellite mapping of environmental conditions. These activities are important for measuring changing conditions across the landscape, developing environmental baselines, and mapping the environmental landscape. They also tend to protect privacy. What the EPA is doing is hunting for violations amongst farmers and ranchers and feedlot owners and others who (1) have not been notified that they are under inspection or surveillance, unlike when a health inspector shows up at a restaurant, and (2) may have broken no laws or be under the suspicion of breaking any laws justifying such surveillance, unlike under most circumstances when law enforcement seeks to conduct surveillance on a suspect and must have some reasonable suspicion that violations of law are occuring or are about to occur (there are exceptions, but you get my point). It’s a creepy practice and I hope Congress puts an immediate end to it.

 

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Enviros Sue and the Feds Pay

I’m a day late. Yesterday, Fox carried a story about the Equal Access to Justice Act, and the concern that enviros are abusing the law by collecting outrageous attorneys’ fees when litigating the feds. Here’s the lede:

Deep-pocketed environmental groups are collecting millions of dollars from the  federal agencies they regularly sue under a little-known federal law, and the  government is not even keeping track of the payouts, according to two new  studies.

The Equal Access to Justice Act is a Carter era relic that was intended to help the little guy – the small business owner or farmer – challenge the federal behemoth when they believe that they had been stomped on by some discretion-exercising bureaucrat. Like many well-intentioned laws, the Equal Access to Justice Act quicly spun out of control.

The exact taxpayer cost of the Equal Access to Justice Act remains unclear.  The General Accounting Office, or GAO, tracked 525 legal fee reimbursements  that totaled $44.4 million from 2001 through 2010, but found that only 10 of 75  agencies within the U.S. Department of Agriculture and Department of Interior  could provide data on cases and attorney fee reimbursements.

I did read the GAO study. Nothing in it is surprising. That the government cannot track its spending habits or litigation records is par for the course.

I happen to know that the Forest Service in particular is heavily litigated, and frequently loses cases to environmental groups. Often, they deserve to lose these cases: the Forest Service represents the government, and the whole suite of federal environmental law is under their purview. The fact that the they frequently fail to accurately and legally interpret and/or implement these unbelievably complicated and conflicting laws speaks more to the nature of public policy in this country than it does the professionalism or competence of Forest Service personnel. Unfortunately, the mess that we have made of our environmental laws does not excuse the Forest Service from their obligations under federal law. To say though that it’s the environmental groups who are wrecking the system, particularly when the charge comes from a member of congress, misses the mark by a wide margin.

The Abusive EPA

Instapundit pointed me to this Washington Post editorial today about the downfall of the EPA. Here’s the Post’s conclusion from the recent EPA blunders involving the Sacketts and Mr. Arminderiz, which I wrote about earlier:

The lesson for Ms. Jackson and her boss, President Obama, from these two episodes is clear: The agency’s officers must have a clear sense when to deploy its mighty power and when to exercise discretion. That’s true for the sake of the economy and to ensure that the EPA will be able to continue its necessary work for years to come.

I agree that the EPA has a necessary job, but it’s how the EPA “deploy[s] its mighty power” that bothers me. Having authority is a matter of federal law, not the result of some whimsical judgment from a politically appointed administrator. Unfortunately, what we are seeing with the EPA in particular is the growth of bureaucratic authority from within the bureaucracy, rather than through authorities granted by congress and the president. And what we’re seeing from our congress is the passage of laws that leave the underlying authority as a broad, unanswered question, which will be determined internally by the bureaucracy. The Affordable Care Act is a perfect example where congress wanted some broad goal to be realized, and left the issues open ended for the bureaucrats at Health and Human Services to resolve. The result often, and increasingly, is a massive disconnect between the governed and the government as our elected congress passes the buck to unelected, unresponsive, and unaccountable bureaucrats.

Another Black Eye for the EPA

This, folks, is how you lose all credibility. From Fox News:

A top EPA official has apologized for comparing his agency’s enforcement strategy to Roman crucifixion — as Republican Sen. James Inhofe launched an investigation and told Fox News the comments are part of a campaign of “threats” and “intimidation.” 

Crucifixion? That’s your job? I’d like to see that performance review. Look, this guy is every bureaucrat in every bureaucracy; they are creatures of politics and partisan motivations and personal biases. These are the people in charge of our planet, to put it bluntly. And they’re not up to the task. It’s time to remove them from the equation and set rules that can’t be gamed.

Supreme Court Takes EPA to the Woodshed

You may have read yesterday that the U.S. Supreme Court took the Environmental Protection Agency (EPA) to the woodshed over a wetlands case in Idaho. In a unanimous decision. of all things, the Court overruled two lower court decisions (including one by the oft-overturned 9th Circuit) in a case involving landowners in Idaho who wished to build a home on property the EPA deemed a wetland. The EPA had issued a “compliance order” against the landowners, preventing them from constructing their home under fines of up to $75,000 per day. So far, all is well.

The landowners wished to challenge the EPAs decision, but were told by the agency that no such challenge was allowed, and further that no challenge to the compliance order would be allowed unless and until the EPA decided to sue the property owners. This could take years, or never happen. With fines of $75,000 a day hanging over their head, the owners were in a bureaucratic limbo. This is where the legal imbroglio began.

Now, the important issue here is that the Court did not rule on the EPA’s determination of a wetland on the property; nor did the Court rule against the Clean Water Act nor give the green light for the property owners to build on their property. What the court did is state, very plainly and forcefully, that EPA decisions are subject to judicial review under the Administrative Procedures Act. That this was ever in doubt demonstrates how unaccountable our bureaucracies have become. The ruling means two things: first, you can have your day in court against the EPA; and second – and most likely the reason for the unanimous decision – is decisions by the EPA are no longer exempt, as the government had claimed, from judicial oversight.