Red Queen Rules EPA

In Alice in Wonderland, the Red Queen is known for many remarks that stand logic on its head.  One of the best known is, “verdict now, trial later.”  EPA Administrator McCarthy has done the Red Queen one better. Verdict now, no trial.

EPA asserting authority under the Clean Water Act has begun a pre-emptive veto of the Pebble mine project to develop the largest copper and gold mine in the Southwest even before the developers have had their day in court.  This is the stuff of dictatorships not the shining city on the hill.

America was founded on the principles of limited government and liberty and justice for all.  It should worry all of us when a government agency can unilaterally pre-empt a business investment before there has been a hearing and opportunity for public comment.  Over the past 5 years, EPA has shown itself to be a rogue agency driven by an extreme environmental ideology that is willing to act with little regard to the impact of its actions on our economic well being.  If the rule of law can be cast aside so cavalierly, other rights and protections are at risk.

According to documents obtained by the Wall Street Journal, EPA began planning its veto strategy five years ago, well before the Army Corps of Engineers had conducted its review.  Under the Clean Water Act, the Corps of Engineers has primary authority for evaluating Pebble like projects and issuing permits.  EPA has a secondary role that includes potential veto.  EPA’s pre-emptive action is a clear violation of the law that is why its Inspector General is conducting an investigation.

EPA has shown a willingness to disregard laws that it finds inconvenient because of Congress in its state of gridlock can do little to stop it.  Decisions under the Clean Air Act that it has taken and has under consideration—the ozone standard—are based distorting the scientific process, on questionable science, and a disregard for economic impacts.  Balance and trade-offs are principles that are alien to this EPA.

Fortunately, the agency’s Inspector General has stepped in and may prevent another serious abuse of power.  If not, EPA will surely end up in court.  Litigation is expensive and time consuming and while it takes place job creating investments are chilled.

We have become an over-governed society and the time is ripe for a rebalancing.  The federal government is supposed to be a limited government but it is anything but.  We need a national discussion about the role of the federal government relative to the state governments and relative to individual rights that are guaranteed by the Constitution.  It has been over 80 years since the last broad based restructuring of the federal government—the Hoover Commission.  We have more government than we need, more than we can afford, and more than our freedoms can tolerate.

Seventy-five years ago, Nobel Laureate Frederich Hayek wrote the Road to Serfdom in the response to the spread of socialism in Europe.  In it he wrote, “Nothing distinguishes more clearly conditions in a free country from those in country under arbitrary government than the observance of the Rule of Law.  …. government…is bound by rules …which make it possible to foresee with fair certainty bow the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.”  Consistent with this is the principle that the ends do not justify the means.

In the case of the Pebble Mine project, EPA has turned the Rule of Law on its head and has adopted a ends justify means approach to deny the developers to proceed in compliance with the law and to have their day in court.

This article appeared on the FuelFix weblog at

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