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

• Author: Stroup, Richard L.
• Position: Book Review

* Out of Bounds, Out of Control: Regulatory Enforcement at the EPA By James V. DeLong Washington, D.C.: Cato Institute, 2002. Pp. xi, 111. $8.95 paperback.

Author James V. DeLong, a lawyer by training, understands the primary importance to society of following the rule of law. In Out of Bounds, Out of Control, he describes the sources and the vast extent of the Environmental Protection Agency's (EPA) growing importance in the United States. He also highlights and details the EPA's emphasis on enforcement. In this little book, he makes frighteningly clear the EPA's power to create rules to serve the vague but ambitious goals written into environmental statutes, its focus on enforcement in preference to environmental results, and ultimately its success in defeating the rule of law. That message alone makes DeLong's book important.

What is the rule of law? DeLong quotes (p. viii) F. A. Hayek: "Stripped of all its technicalities, [the rule of law] means that government in all its action 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 a given circumstance and plan one's individual affairs on the basis of this knowledge" (The Road to Serfdom [Chicago: University of Chicago Press, (1944) 1976], p. 72). DeLong shows that planning to assure compliance with EPA regulations is nearly impossible because enforcement officials have so much leeway in their interpretation of the rules the EPA writes.

In the first chapter, DeLong explains the workings of the EPA's formulation and enforcement of rules as well as the powerful tools it has at its disposal--tools used with few checks on its authority and little to balance their application. The EPA writes the rules with limited guidance from Congress, and the courts commonly defer to experts in executive-branch agencies in interpreting whatever legislative guidance was offered. Chapter 2 shows how EPA enforcement actions can be quite arbitrary because EPA enforcers have much discretion in interpreting the broad rules written, of course, by the agency itself. If the EPA regards a practice as a violation of the regulations, does that violation rise to the level of a serious criminal case? The EPA has virtually total discretion in deciding such matters. Penalties for the offender and for individual decision makers in an offending firm may be extremely large. Will such individuals fight back in court if...