Steven F. Hayward was invited to speak at Hillsdale College‘s Allen P. Kirby Center about “The EPA and Private Property” on July 12th, 2012. We try to look at both sides of any issue so here’s his insight on environmental regulation.
Hayward is a resident scholar at the American Enterprise Institute and has been a regular contributor to the Index of Leading Environmental Indicators published annually by the Pacific Research Institute.
Hayward offers a conservative view of the US Environmental Protection Agency (EPA) that can be helpful in discussions of how what and how the EPA regulates. We’ve offered his comments especially for those who wouldn’t typically watch a conservative broadcast – at least you’ll get a sense of the issues he raised.
Hayward opened with four points upon which he expanded during his talk. They are:
1. The primary threat to property rights over the last 100 years came primarily from from local and state governments through zoning laws and the use of eminent domain.
2. The Environmental Protection Agency (EPA) should be thought of as a super-charged public health agency – that’s the idea upon which it was created and operated for decades. For example, much of EPA’s early work was addressing sewage and other issues with local governments.
3. The threat to property rights has started to invert: from state and local governments to the federal government. This is particularly true on issues like water where EPA is using the Clean Water Act aggresively.
4. The entire problem of the EPA’s expanding scope of regulation cannot|should not be reviewed without discussion of the separation of powers: Congress has abdicated too much power to the bureaucrats.
Here are some additional notes from his presentation:
A. Hayward cited a number of court cases that are helpful to anyone interested in eminent domain and government regulation of private business. You can find a video link at the bottom of this post if you’d like more information.
B. Eminent domain became a much greater challenge for property owners when the reason for use of eminent domain was changed from “public use” to “public purpose”. The change made the requirements more vague so municipalities can stretch the intent.
C. Other US regulatory agencies regulate one thing. They’re led by a five-person board that’s bi-partisan, appointed by the President, with minority party representation – introducing political accountability. The EPA is headed by one person and doesn’t have a narrowly defined scope – that enables it to be partisan and go looking for things to regulate.
D. The EPA is a giant bureaucracy looking for work. The private sector has responded to regulations with better engineering so the need for EPA activity in regulated areas has often decreased. As a result, the EPA has gone after smaller and smaller issues. A key example is the boiler MACT rules – EPA is working to squeeze mecury out of everything even though it’s barely detectable in many situations. (MACT = maximum achievable control technology)
E. The Clean Water Act allows EPA to regulate “navigable waters”. EPA is working on removing “navigable” from the definition so it can dramatically increase its ability to regulate.
F. The Endangered Species Act (ESA) gets the incentives backwards – it encourages people to “shoot, shovel and shut up” rather than being regulated. We can’t have enough regulators to see everything so this approach is a strategic failure.
G. The traditional environmental approach has confiscated issues and given them to government – that doesn’t incentivize local ownership so it discourages a proactive response from the land owners.
H. EPA regulation of water is shaping up to be adversarial and punitive so it will incentivize land owners to make water quality testing even more difficult. The result of this approach will be the need for dramatically more regulators – an enlarged group of bureaucrats.
I. Congress doesn’t pass laws any longer, it passes to-do lists and wish lists. That’s the import of Nancy Pelosi’s statement, “We have to pass the bill to find out what’s in it.” – it’s a clear acknowledgement that the actual rules and regulations had not been written at the time of her statement.
One of the most memorable quotes from Hayward’s presentation is, “The environment is much to serious to be left to the environmentalists.” You can watch the video of the Hayward’s remarks for much more information and the context of his remark, intended to encourage a proactive approach to environmental stewardship by all property owners.
Thanks to Steven Hayward and Hillsdale College for this presentation! You can use the link at the top of this post to find Hayward’s blog posts, books and more. You can also use the Hillsdale College link at the top of this post to find many more learning opportunities.