But increasingly the regulatory state has solved the problem of agency capture by industry. It has instead become captive to ideological interest groups.
This is nowhere more evident than at the
Environmental Protection Agency, which has for practical purposes become
a wholly owned subsidiary of the environmental movement. Beyond a
revolving door between environmental advocacy and senior EPA staff
positions, there is ample evidence of close collaboration between
environmental organizations and EPA staff in regulatory rule-making and
even in permitting decisions.
A cache of emails and other communication
records that the Energy and Environment Legal Institute and Competitive
Enterprise Institute pried from the EPA through Freedom of Information
Act litigation reveals close connections between EPA and the Sierra
Club, the Natural Resources Defense Council, and the Environmental
Defense Fund. While these collaborations may not cross a legal boundary,
they certainly violate any sense of transparency and the duty of a
regulatory agency to be impartial. And as with Hillary Clinton’s private
email server, senior EPA officials went out of their way to communicate
through pseudonymous email addresses (like former EPA administrator
Lisa Jackson’s “Richard Windsor” emails) and private accounts, in what
appears to be a deliberate attempt to avoid public scrutiny. In
addition, EPA staff sometimes arranged to meet environmentalists offsite
to avoid having to log visits to EPA offices.
For example, documents discovered in the FOIA
action demonstrate that the EPA had decided to veto the application for
the proposed Pebble copper mine in Alaska even before it had conducted
an environmental assessment, and that it relied on an “Options Paper”
produced by a lawyer working for the mine’s opponents to justify its
veto. Other documents show the EPA is determined to prevent new coal
export terminals from being built in the Pacific Northwest, though
permitting decisions for such facilities are outside the EPA’s
jurisdiction.
The most significant collaboration, though,
concerns Obama’s “Clean Power Plan,” the final rule for which was
released on August 3. The record is clear that environmental
organizations—especially the NRDC—had major input into the design of the
Clean Power Plan that was first announced a year ago, and are likely
responsible for the major changes in the final, tougher Clean Power Plan
rule just released.
The final rule calls for larger greenhouse gas
emissions reductions by the year 2030, and will compel the use of wind
and solar power over natural gas much more aggressively than the initial
proposed rule of last year. The Sierra Club has openly said that after
it succeeds in killing coal, natural gas is next on the menu. Having
failed to stop the fracking revolution that has brought us cheap and
abundant natural gas (the EPA recently gave fracking a clean bill of
health after a four-year study), environmentalists now plan to constrict
natural gas through the climate plan. The tougher conditions of the
final rule came as a surprise especially to the natural gas and nuclear
industries, reflecting the likelihood that environmentalists pressed the
EPA, saying that its initial proposal wasn’t strong enough. Despite
questions about the legal vulnerability of the rule, the EPA decided to
double down.
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