The Molecule Rule and King Rainbow

Think you own your land? Think again. It’s more like the EPA owns it. Arbitrary, capricious, and arrogant, the EPA has a long history of abusing the rights of property owners to do as they see fit with their land.

Property rights are the foundation of every other right. Without the right to own a printing press (or its modern equivalent) freedom of speech is empty. Without the right to own a home and its contents, the right against search and seizure is meaningless. When government is capricious in its enforcement of even reasonable laws, ownership of anything is a mirage.

Does this mean we all get to do anything we please with our possessions? Of course not. My polka music at some volume becomes a legitimate nuisance to neighbors. My factory’s smoke may harm nearby residents. Laws and lawsuits are perfectly legitimate ways to manage this perennial conflict.

Remember, though, that it is a conflict. I have some right to play music, and it is almost assured that someone else will hear it. My factory cannot legitimately poison others, but would we say that no business can release anything into the atmosphere? In a literal sense, everything we do affects everyone else.

I sneezed a sneeze into the air
It fell to Earth, I know not where
But hard and cold were the looks of those
In whose vicinity I snoze

This is humorous in a poem–perhaps not so funny in reality. Meet the Molecule Rule. I leave it to you to read the details of Mr. Rapanos’s travails with the Army Corps of Engineers, but here is the gist of it:

The Army Corps of Engineers came up with the “migratory molecule” rule, which says that even isolated wetlands fall under federal jurisdiction because there is a theoretical chance that a water molecule from any location may reach a navigable waterway.


Always on the lookout for stories too goofy to be true, I wondered whether this one was an urban legend. It is not. The case eventually made it to the Supreme Court. In a split decision, the Court agreed to void rulings against the plaintiffs, but left the interpretation of the Clean Water Act with regard to wetlands unsettled. (They did, however, rule that it was not limitless.)

The feature that makes this case and others like it so disturbing is the rank arrogance of the bureaucrats in charge of legitimately monitoring pollution. Just as the Commerce Clause has been twisted to nullify any meaningful restraint on the federal government, the Clean Water Act has been used as an excuse to lord over every mud puddle in America.

Today, bureaucratic hubris has run up against economic reality. At a time when creating jobs is of paramount importance, one wonders if Lisa Jackson and her compatriots at the EPA understand that every so-called anti-pollution rule has a cost. In some cases, that cost is crippling to business.

Is Obama getting the message? Maybe. Only hours after a dismal jobs report, the Administration overruled the EPA on proposed new standards for ground-level ozone. Though I favor the decision, I do not see it as marking a new trend of sanity from the President. More likely, he just could not face another ***-whooping over his abysmal handling of the economy.

People who have to hammer out agreements with one another generally come to some reasonable solution over time. This includes pollution rules. By handing such broad and unchecked authority over to alphabet agencies, we have assured the eventual destruction of any kind of property rights. This is not the right answer to an admittedly vexing problem. It is rather the establishment of a true Bureaucracy, one in which we are all subjects of King Rainbow.

About Terry Noel

I am an Associate Professor of Management and Quantitative Methods at Illinois State University. My specialty is entrepreneurship.
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