Marita Noon

During the three-day Supreme Court review of Obamacare, Justice Anthony Kennedy created news with his statement that the government has a “heavy burden of justification” to prove its case. All of America is watching and waiting for the expected June decision from the Supreme Court. 

The question remians: Did the Obama administration overstep its authority with its landmark healthcare legislation?

But, at least in one case, we do not have to wait for a decision that the Obama administration has “overstepped its authority”—a federal judge has already handed down that decision. In this case, healthcare is not at the center of the debate; the Environmental Protection Agency (EPA) is. The agency have been issuing regulations and finalizing rules with no “burden of justification.” 

The EPA, “dominated by anticarbon true believers,” could be considered rogue—except that it has the blessing of the boss. The agency’s actions align with President Obama’s “campaign to raise the price and limit the production of fossil fuels” here in America. The  EPA’s freewheeling, however, may have been curbed as the agency is facing a headwind of opposition from the industries they are shutting down, state regulators, and even federal judges. 

The wheels are coming off the wagon.

A couple of weeks ago, March 23, the EPA suffered a setback when US District Court Judge Amy Berman Jackson in Washington, DC, determined that the EPA did not have the power to revoke a legitimately approved mining permit once it had been issued by the Army Corps of Engineers, as the EPA had done in January 2011 regarding Arch Coal’s Spruce No. 1 mine in WV. In ordering that the EPA’s “action be vacated in its entirety,” Judge Jackson said: “This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.”

The EPA entered dangerous territory when it retroactively vetoed the permit, which had been approved after an exhaustive, approximately 10-year, regulatory process—which included time for an extensive review by the EPA. At the time, Senator Manchin (D-WV) said the “decision is not just fundamentally wrong, it is an unprecedented act by the federal government that will cost our state and our nation even more jobs during the worst recession in this country’s history.” He continued: “it has negative ramifications for every state in our nation.” Manchin called the EPA’s decision “an irresponsible regulatory step” and said it was “a shocking display of overreach,” with “a chilling effect on investments and our economic recovery.”

The permit, issued in 2007, now “remains valid and in full force.”

The following week, April 1, the EPA itself took a step back in its arrogant power grab. Once again, in January 2011, the EPA positioned itself above the appropriate governing body. In this case, the EPA filed a lawsuit against an energy company it claimed had contaminated drinking water in Texas through a natural-gas drilling process known as hydrofracturing—which is currently regulated by states, and for which the EPA wants national standards

In Texas, oil and gas activities are regulated by the Railroad Commission. The EPA said the Railroad Commission failed to address an “imminent and substantial endangerment” to public health. The EPA then, in January 2011, filed a lawsuit against Range Resources. The Railroad Commission accused the EPA of “fear mongering, gross negligence and severe mishandling.” After an appeal from Range Resources argued that “the agency’s analysis was inconclusive,” and the company pointed to nearby wells known to contain gas long before Range began drilling in the area, the EPA dropped its suit.

Railroad Commission Chairman Barry Smitherman responded: “By dropping their court case and enforcement actions, EPA now acknowledges what we at the Railroad Commission have known for more than a year: Range Resources’ Parker County gas wells did not contaminate groundwater. This announcement is a vindication of the science-based processes at the Railroad Commission.”

The Texas case highlights other aggressive actions by the EPA. In agreeing to drop the case, the EPA has agreed to retest water in Wyoming and Pennsylvania where the agency has also engaged in the practice of sowing fear, uncertainty, and doubt—about which the Wall Street Journal cautions that regulators may be “spreading needless fear so they can enhance their own power while pursuing an ideological agenda.” As far back as the early 1950s, natural gas, especially methane, has been found in water wells in areas where no drilling has taken place, but the gas is naturally seeping from “underlying gas-bearing shales.” The seepage can be accompanied by a “rotten egg” smell that tips off an investigation.

Addressing the Texas case, John Hayward, in a column in Human Events, explains the ideology that “is the core assumption of radical environmentalism: all industry is guilty until proven innocent, and the burden of proof rests heavily upon industry. Only the most aloof, unaccountable, heavily concentrated federal power is suited for conducting these prosecutions.”

By spreading fear, the EPA justifies its existence—after all, there is a problem that it needs to solve. It gains power without, as Justice Kennedy said, “a heavy burden of justification.” The crazy regulations the EPA has been issuing represent a breakdown in faith in the government. The EPA has been exposed as being abusive and arrogantly authoritative.

Just two days after the Texas reversal was released, the EPA announced a delay on finalizing its rules aimed at natural-gas wells drilled using hydraulic fracturing. Oil and gas companies pushed to weigh in on the new standards. Perhaps, the EPA is feeling like the rotten egg.

And, these recent “egg-on-its-face” events come after the Supreme Court unanimously sided with the Sacketts and against the EPA in a decision that allows Mike and Chantell Sackett to challenge the EPA. In a statement, the Sacketts praised the court for “affirming that we have rights, and that the EPA is not a law unto itself.”

With this change in climate, it is time to challenge the EPA’s recent regulations against the coal-fueled power industry and give the EPA the “heavy burden of justification.” Let the agency prove that it is not just regulating on fear, emotion, and ideology—but on sound science.


Marita Noon

Marita Noon is Executive Director of Energy Makes America Great.
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