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And the Regulatory State Drones On

Wednesday, July 11, 2012

Forget the kerfuffle over EPA drone flights; nobody pays attention to the things that the EPA is doing that are truly frightening.

Bovines of Nebraska, take cover; Big Brother is watching! The Environmental Protection Agency has been doing aerial reconnaissance flights looking for cows disrespecting U.S. waters—cows not being known for their personal hygiene, and Nebraskans often raising cows in large groups (of cows, not Nebraskans).

This has kicked off the type of political firestorm that makes our politics so predictable, not to mention frustrating. Farmers, understandably, were not happy when “flyover country” included Big Brother flying over their homes and farms with cameras. Politicians expressed shock and dismay, but the EPA has had little to say. The EPA has admitted to the flights, but point out that they didn’t do very many and that it is much more efficient to fly than to drive over a place as big as Nebraska. Budgets are tight; it is very expensive for government agents to drive around Nebraska looking for errant cow pies.

Feedlots have to secure permits from state regulatory agencies, as required by the EPA, with the understanding that there will be no discharge into U.S. waters. That is a reasonable requirement and in the farmer's best interest as well, since the waste from a livestock operation is not waste at all, but a valuable resource that the farmer recycles to grow crops.

Most farmers manage this part of their livestock operations with care and have little worry about reasonable oversight from state and federal agencies. Having said all that, it is a little creepy to have people flying over your home to see what you are doing. It's a mistake for the EPA to enforce those permits with such flights. Even though the surveillance is presumably legal, it’s distasteful and should end. Technology has changed our expectation of privacy, but there are some technologies that ought not be used to enforce environmental laws.

Did I mention that the black helicopter folks have been out in full force? Of course, if your concern is that the government spies on its citizens, and the news is that the government is spying on its citizens, one can excuse the right-wing citizens’ groups for feeling a might bit justified.

The EPA is in the process of adopting a ‘guidance document’ increasing its jurisdiction of the ‘waters of the U.S.’ by a factor of almost three simply by removing the word ‘navigable’ from the Clean Water Act.

The critics of the EPA overplayed their hand, with at least one state representative here in Missouri issuing a press release accusing the EPA of using drones. One imagines President Obama meeting with his top environmental advisers in the situation room, poring over maps of feedlots in flyover country, choosing targets using just-war theory as it applies to bovines. The EPA promptly denied using drones, since they only use piloted flights, and the normal articles have been written poking fun at us provincials for our paranoia.

Such oversight isn’t new. The U.S. Department of Agriculture has been taking aerial pictures of farms for years in order to administer farm subsidies and conservation programs. Farmers should expect to forfeit some privacy when they accept government checks, at least according to the Environmental Working Group and other critics of farm programs.

Not only that, but about once every few years, some guy shows up at my farm willing to sell me pictures of the old home place taken from the air. I've purchased one of those pictures; it hangs on my office wall. Didn't occur to me at the time that my Fourth Amendment rights had been violated.

So, we’ve got the perfect storm. Farmers feel abused, right-wing groups justified, and the media gleefully portrays Nebraska as full of citizen militias in camo and Carhartt, armed with illegal guns and looking for drones with binoculars. Everybody gets their selection biases fully validated, and in the kerfuffle, nobody pays attention to the things that the EPA is doing that are truly frightening.

Budgets are tight; it is very expensive for government agents to drive around Nebraska looking for errant cow pies.

For example, the EPA is in the process of adopting a "guidance document" increasing its jurisdiction of the "waters of the U.S.” by a factor of almost three simply by removing the word “navigable” from the Clean Water Act. The document will expand federal regulation over vast areas of the country that have traditionally been regulated by the states. Almost any activity undertaken by landowners would require a federal permit, an expensive and time consuming process.

Not only that, but the administration is attempting to make the change without following the traditional process for writing regulations. A guidance document is different than normal rule-making, in that the usual process of public comment is not needed. The guidance is for internal use only but tells the enforcement arm of the agency affected how the law will be interpreted so, where the rubber meets the road, it has the full force of law.

To make such a sweeping change in enforcement without following normal administrative procedures is a breathtaking abuse of rule-making power and will expand the reach of the EPA more than any law passed by Congress in decades. This is a change that will massively alter the relationship between the federal government and landowners, and it's all happening without comment or notice by the citizenry or the media.

Even though the surveillance is presumably legal, it’s distasteful and should end.

Claiming the EPA is using drones in its flyovers is an overreaction to what the EPA has done. But the farmers of Nebraska are correct on the larger point, overlooked in the media firestorm. The Obama EPA’s goal is to permanently change the relationship between federal government and what is quaintly called the “regulated community,” meaning everybody in the United States.

It's not unannounced flights we should be worried about or pilots in leather jackets, nor drone operators operating in secret Air Force bases that are the problem. No, it’s the lawyers, the regulators, and the true believers in Washington, working in broad daylight, who should keep us up at night.

Blake Hurst is a Missouri farmer and a frequent contributor to THE AMERICAN.

FURTHER READING: Hurst also writes “The Forgotten Man of the Tax Debate,” “An Imaginary Dustup? The Incalculable Harm of Regulation,” and “Why I’m ‘Ginned Up’ about Regulation.” Michael Barone contributes “Prudence Can End Obama’s ‘Soft Despotism.’” Michael Auslin discusses “'Done Compromising': Obama's Government by Fiat.”

Image by Dianna Ingram / Bergman Group

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