April 13, 2010

Why not trust the government with the environment?

By Why not trust the government with the environment?

Author: Timothy Sandefur

Popular Mechanics is reporting a partly hilarious, partly frustrating story about how the Environmental Protection Agency granted “Energy Star” certification to a bunch of fake appliances—including a space heater with a feather duster attached to it and a gasoline-powered alarm clock. Now, of course, this is obvious proof of specific weaknesses in the “Energy Star” program, but it also suggests a larger lesson about the administrative process.

Administrative agencies are supposed to be disinterested, objective, scientific agencies that can be trusted to bring their expertise to bear on social problems. That’s why courts will defer to their decisions when you sue them. But administrative agencies are non-democratic bodies, often with no effective oversight even from Congress—their unionized staffs can’t really be punished for doing a bad job—and, unlike private companies in a free market, government agencies get funding whether they do a good job or not. You can’t fire them, you can’t ignore them, it’s extremely hard to sue them…why in the world would you trust them to do a good job?

And why should courts defer to them, when much of the time, these agencies simply rubber-stamp assertions by private groups that have an axe to grind? I’m working on a case in Florida right now in which the court upheld an economic regulation on the grounds that it protected the general public. It cited for its decision a 1988 report by some legislative staff members. But that report simply reported, without questioning, the assertions of the very lobbyists who wanted the regulation adopted. Nobody ever investigated these assertions. The people who wanted the law enacted just made assertions that the agency unquestioningly swallowed—and then the court deferred to their judgment.

What’s especially pathetic is how the same people who distrust private arbitration agreements because they’re supposedly biased in favor of big, greedy corporations—are perfectly fine with the entire administrative process, which combines legislative, executive and judicial power, in which the government is both the prosecutor and the judge, and in which the administrative agency is given so much deference that it can base its decisions on hearsay and other flimsy “evidence,” and get away with it. Where’s their concern for the little guy when the government’s involved?

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