Out of Bounds, Out of Control: Regulatory Enforcement at the EPA

The philosopher F. A. Hayek said: “Stripped of all technicalities, [the phrase ‘rule of law’] means that the government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and plan one’s individual affairs on the basis of this knowledge.”

Out of Bounds, Out of Control measures the enforcement activities of the Environmental Protection Agency against that standard and finds them disturbingly deficient. Environmental regulation is so detailed and obscure that no one can identify all relevant mandates, let alone ensure compliance. EPA maintains broad discretion to define legal violations and resists any checks. Discretion is exercised retroactively or arbitrarily. People fear to dispute the agency’s interpretation of its power or express doubts about the absolute primacy of its mission lest they be made into examples. The concept of “intent” has become so attenuated that it provides no limitation on prosecution.

EPA also blurs the lines separating governmental powers. Using its open-ended authority to “interpret” vague statutes, it makes the laws that define its own powers, then investigates, prosecutes, adjudicates, and penalizes. Judicial checks are sporadic. This panoply of authority breeds regulatory zealotry and a disregard for the rights of the regulated. The book, however, is more than a sobering look at a legal theory. In story after story specific regulatory abuses are examined, many of which are positively Kafkaesque. Moreover, many of the problems documented in the book are pandemic across the government. The ultimate lesson to be drawn is that deep structural reform is needed to restore the rule of law to administrative agencies.

“…a straightforward survey and analysis of the enforcement activities of the Environmental Protection Agency.”
—The Midwest Book Review

“My former colleagues in the environmental movement who now work on regulatory compliance for corporations have long told me on the quiet that their clients cannot help committing technical violations. Because EPA’s rules are so shifting and muddled, even harmless and unwitting violations can be punished as crimes. In deciding whether to seek harsh punishment, the agency is driven more by EPA aggrandizement than environmental protection. These anonymous complaints have now been backed up with convincing proof in DeLong’s crisp little book. EPA staffers should be sentenced to keep reading it until they wake up to the broader public interest.”
—David Schoenbrod, Cofounder, Natural Resources Defense Council

“Out of Bounds demonstrates that federal agencies, in the absence of appropriate legislative checks, invariably tread on the rule of law, due process, and just about everything else that we hold dear. I believe this disturbing book represents the vanguard of a new, more responsible attitude toward environmental protection, which maintains both our liberties and a clean planet. Out of Bounds is a must read for all citizens who understand that without either of these our quality of life becomes gravely diminished, and that both are required for a healthy world.”
—Patrick J. Michaels, Professor of Environmental Sciences, University of Virginia, and Author, The Satanic Gases: Clearing the Air about Global Warming

James V. DeLong is Director of the Center for the Study of Digital Property at the Progress and Freedom Foundation and Principal for the Regulatory Policy Center, in Washington D.C.