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Commentary: Despite recession, budgets grow for federal regulators

Issue Date: September 14, 2011
by Brandon Middleton
Despite evidence that the valley elderberry longhorn beetle no longer needs federal protection, the U.S. Fish and Wildlife Service took more than four years to start the process of removing the beetle from the list of threatened species.
Photo/ USFWS, Brian Hansen
Brandon Middleton

Although the recession is supposed to have ended two years ago, looking for signs of vigorous recovery can give you eyestrain.

Unemployment nationally is above 9 percent (12 percent in California); manufacturing has weakened in recent months; and housing continues to struggle.

Still, even in this anemic economy, not everybody is feeling the pain.

While the private sector economy is in sick bay, federal regulatory agencies are in the best of health, enjoying steady, robust financial growth.

The annual "Regulator's Budget" from George Washington University and Washington University in St. Louis pegs the overall budget for federal agencies at $54.8 billion for 2011—up 5.7 percent over last year.

Unfortunately, this is the kind of growth—bureaucratic growth—that we don't need, at least not if growing the economy is our goal.

With regulatory expansion comes expanded red tape. In July alone, unelected federal regulatory officials handed down 379 new rules at a cost of more than $9.5 billion, according to a report by Sen. John Barrasso, R-Wyo.

The harm to productive activity can be shown statistically, but it's the stories of individuals that drive the message home—people like Mike and Chantell Sackett, of Priest Lake, in Idaho's Northwest Panhandle. They simply want to build a three-bedroom home on a small parcel they own in a residential area. But the U.S. Environmental Protection Agency stands in the way.

Their land has sewer and water hookups, and they obtained all the necessary building permits. But after they started laying gravel, EPA suddenly swooped in and ordered them to halt. It designated their property as "wetlands" and told them to return the land to the agency's liking—on pain of $37,500 per day in fines.

The land is 500 feet from the lake; it's next to other houses; there is no standing water; and, after EPA came down on them, the Sacketts got a certificate from an engineer contending it is not wetlands. But EPA won't even allow them to appeal. It says they can't get court review unless they go through a permitting process that could cost $270,000 or more—over 10 times their land's value.

The U.S. Supreme Court has agreed to hear their case in the term that begins in October. As Bloomberg BusinessWeek magazine reported, the ruling could "bolster the rights of landowners facing costly demands from the federal government."

With so many federal regulators flexing muscles in bullying ways, all across the country, anything that "bolsters" average landowners' rights would certainly be welcome.

Consider how the EPA's cohorts at the U.S. Fish and Wildlife Service are endangering the economy, and even public safety, in the Central Valley, by keeping a one-inch beetle on the Endangered Species Act list long after any justification for doing so became extinct.

It was in 1980 that the service listed the valley elderberry longhorn beetle as "threatened," and proceeded to impose habitat regulations on land from Redding in the north to Bakersfield in the south.

Fast forward to 2006: A study commissioned by the service concluded, in essence, mission accomplished; the beetle had recovered and was no longer threatened.

Given the burdens on farmers, ranchers, businesspeople, and average homeowners and landowners—as well as the impediments to construction and maintenance of flood-control levees—the news that the beetle could be dropped from the ESA list brought sighs of relief.

So, the bureaucrats acted quickly to "de-list" the beetle, right?


For more than four years, the agency did nothing. Today, the beetle's outdated regulatory status as a "threatened" species remains; landowners are still prevented from making reasonable use of their property; and levee maintenance is still more expensive and less comprehensive than it should be.

In August, FWS finally took the first formal step toward freeing the beetle—and taxpayers—by announcing that there is "substantial information" that it can be taken off the ESA list. A period of review, and a final decision, will follow.

But this announcement came only after the agency had been petitioned, prodded—and sued—by attorneys with Pacific Legal Foundation, representing county Farm Bureaus, businesses, landowners and flood-control districts.

If the bureaucrats continue to stall—if they don't produce a de-listing decision in a timely manner—another lawsuit is a certainty.

Examples of abuses by EPA, FWS and other federal agencies are endless, but the underlying message is the same: Too often, they behave as if they are accountable only to themselves, not to the American people, elected officials or the demands of economic common sense.

If Congress and President Obama really care about recovery, they should start by reining in the regulatory agencies that are enjoying boom times while the country is still reeling from an economic bust.

(Brandon Middleton is a staff attorney with Pacific Legal Foundation, a Sacramento-based organization that litigates for limited government, property rights and a balanced approach to environmental regulations.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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