By Robert Gordon
Just in time for the Fourth of July, the Environmental Protection Agency (EPA) announced that it has added a new regulatory weapon to its arsenal.
In a Federal Register notice on July 2 titled “Administrative Wage Garnishment,” the EPA stated that by the authority of the Debt Collection Improvement Act (DCIA ) of 1996 it issued a proposed rule that “will allow the EPA to garnish non-Federal wages to collect delinquent non-tax debts owed the United States without first obtaining a court order.” According to the Treasury Department, under DCIA, such debts include “unpaid loans, overpayments or duplicate payments made to federal salary or benefit payment recipients, misused grant funds, and fines, penalties or fees assessed by federal agencies.”
The EPA explains that, “Prior to the enactment of the DCIA, Federal agencies were required to obtain a court judgment before garnishing non-Federal wages. Section 31001(o) of the DCIA preempts State laws that prohibit wage garnishment or otherwise govern wage garnishment procedures.” It’s worth repeating just part of the list of debts for which wages may be garnished under the DCIA: “fines, penalties or fees assessed by federal agencies.”The EPA rule also states that, “we view this as a noncontroversial action and anticipate no adverse comment.” Consequently, the rule continues, “This direct final rule is effective September 2, 2014, without further notice unless EPA receives adverse comments by August 1, 2014.”
While one may not be too troubled about collection of unpaid loans or misused grants funds for example, that’s not all there is to consider with this regulation. People like Andy Johnson, a local welder in Uinta County, Wyoming, might want to sit up and take note. The EPA issued an administrative order demanding that he destroy a pond he painstakingly built on his own property or face serious repercussions. The EPA has threatened Johnson with fines in the amount of $75,000 per day for violating the Clean Water Act.
The pond’s waters are not polluted and the pond is much appreciated by wildlife, given the arid nature of Uinta County. Johnson even sought regulatory approval from the state for his private effort to improve the environment. He did not however get a permit from the Army Corps of Engineers and consequently finds himself under the EPA’s thumb. Wyoming Senators Mike Enzi and John Barrasso joined with Louisiana Senator David Vitter to issue a letter to the agency stating that the “EPA appears more interested in intimidating and bankrupting Mr. Johnson than it does in working cooperatively with him.”
Johnson is not alone in suffering this kind of bullying at the hands of the EPA. Chantell and Michael Sackett of Idaho were similarly threatened by the agency with fines of $75,000 per day for seeking to build a home on a small lot situated between two other lots that already had homes, an action the EPA claimed the couple could not even challenge. The Sacketts challenged it anyway, and the case went all the way to the Supreme Court, where they won a unanimous verdict.
Justice Antonin Scalia wrote the court’s decision stating that, “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Scalia went on that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”
While the Supreme Court may have found that the Sacketts and, consequently, folks like Johnson, do have some recourse to challenge administrative compliance orders from the EPA, those who fall into the agency’s sights may now face a new and crushing hurdle: wage garnishment. Just how many people could endure challenging the EPA’s regulatory actions—no matter how indefensible—if they faced fines that the agency could garnish from their wages? How many can be coerced into “voluntary compliance”?
On July 4 we celebrated our independence. One of the many grievances in the Declaration of Independence—the reasons we listed to explain why we choose to break away and declare ourselves free—was that the king had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” Seems familiar and it is clear that the current Administration is pushing adoption of these regulations, as many federal agencies have issued similar rules. None, however, matches the EPA’s record of heavy-handedness.
The EPA said that if it receives no adverse comments by August 1, the direct final rule will go into effect. Well, the folks at the EPA already have at least one—in comments submitted on July 3, The Heritage Foundation urged the EPA to “withdraw the direct final rule.” We doubt that we’ll be the only ones.
Robert Gordon is a senior advisor for strategic outreach at the Heritage Foundation; previously, he was the founder and director of the National Wilderness Institute. He also served two terms as a member of the Commonwealth of Virginia’s Board of Conservation and Recreation.