Health & Freedom

EPA Official “Crucified” By His Own Words

by Attorney Jonathan Emord

The ethos in most enforcement divisions of federal regulatory agencies is one of hostility towards those private businesses politically targeted for investigation. It is not enough to identify rule violations and invite compliance, agency enforcers relish in conducting clandestine investigations followed by unannounced inspections that lead to onerous and intrusive administrative subpoenas and ultimately to dramatic administrative or judicial complaints and demands for destruction of product lines or advertising and exorbitant fines vastly in excess of actual injury. For the hapless businessman who is the subject of regulatory attack, agency requirements and demands are bewildering and devastating. Most agencies have so many regulations that no single regulator is a master of even one-tenth of them and yet, when enforcement efforts commence, the agencies endeavor to pursue every conceivable violation, no matter how technical and insignificant. Each violation is trumpeted as proof that the party accused is not simply out of compliance but is an enemy of consumers, the environment, or the United States.

In short, the modern American regulatory state is predatory. It is antagonistic, even contemptuous of free enterprise. Hundreds of anti-competitive prior restraints, many counterintuitive, are adopted each year atop the thousands already in place. They form a formidable series of traps for the unwary and place those with even simple business plans and modest ambitions, who lack the resources for regulatory counsel, at a distinct risk and disadvantage when compared to established firms with their bevy of K street lawyers and risk managers.

The regulatory ambition is to intimidate, not to guide, and to obliterate, not to correct. Recently, that ugly side of agency conduct (often visible only to those who bear the brunt of it due to a media that all too often simply republishes regulatory accusations rather than uncover regulatory abuses) came to light.

In a May 2010 speech, reported upon by the Associated Press and by The Blaze, Al Armendariz, EPA’s Administrator of the South and Southwest region (including the states of Texas, New Mexico, Oklahoma, Arkansas, and Louisiana), described his (and his department’s) enforcement philosophy. He viewed EPA enforcers as akin to conquering Romans who would enter a village and crucify a few locals to create an in terrorem effect, intimidating all others into compliance with Roman law and edicts. He said:

I was in a meeting once and I gave an analogy to my staff . . . The Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years. . . . And so you make examples out of people who are in this case not compliant with the law. Find people who are not compliant with the law, and you hit them as hard as you can and you make examples out of them, and there is a deterrent effect there . . . . And companies that are smart see that, they don’t want to play that game, and they decide at that point that it’s time to clean up.

You can watch Armendariz delivering these remarks here.

Senator James Inhofe has identified this speech as proof of EPA’s brutal commitment to undermine the U.S. energy industry and, most particularly, to destroy industry reliance on hydraulic facturing (so-called “fracking”). The analogy to Roman conquerors that Armendariz used is particularly alarming because Roman occupation involved the exercise of summary justice, denying non-Romans due process and entitlement to presumptions of innocence that were legally required to be accorded Romans. Moreover, Armendariz appears to relish in the fact that the Romans in his story nabbed “the first five guys they saw” and scheduled them for summary execution without a hint of remorse that those taken captive were denied respect for or protection of their rights to life, liberty and property. Armendariz’s use of the word “little villages” in contrast to the mighty Roman Empire conveys the impression that those least able to defend themselves legally against the EPA are the appropriate prey for that mighty agency. Finally, the notion of making examples of a few by hitting them “as hard as you can” conveys the impression that Armendariz favors a selective enforcement of the law and one that chooses capital punishment over a lesser penalty proportionate to the alleged offense. In short, Armendariz, a top EPA official, is infatuated with the idea of exercising tyrannical power and laying waste to vital American industry.

On April 29, forced either to defend his position (and thereby embarrass the Obama Administration by revealing publicly another of its evils, just how draconian the EPA is to those in the way of its regulatory jackboot) or to resign, Armendariz chose resignation. He was thus crucified, as it were, by his own words lauding crucifixion.

Armendariz wrote to EPA Administrator Lisa Jackson: “I have come to the conclusion that my continued service will distract you and the agency from its important work.” Indeed, but the enforcement ethic that he commended is endemic at EPA and at all other federal agencies that have jurisdiction over American industry. The issue of this administration’s resort to regulatory tactics that destroy the engine of free enterprise should remain a centerpiece of the presidential campaign. Let us not soon forget EPA official Armendariz’s haughty and condemnatory remarks; they describe precisely what is most ruinous to American business and to American liberty.


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