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Environmental Regulation Makes the Tabloids

  • Jonathan Wood
  • ©Ian Collins

    It’s not every day that environmental regulation news goes viral. But when the stars of a popular television show are fined for violating obscure, but strict, regulations, the news quickly spreads.

    Earlier this month, the couple behind HGTV’s Fixer Upper and their company agreed to settle EPA’s claims that they violated federal lead-based paint rules when renovating homes in Waco, Texas. EPA employees, apparently fans of the show, noticed in several episodes that the Gaineses and their renovation company did not appear to comply with these regulations in circumstances where it was likely necessary.

    Those regulations require any contractor performing renovation work for pay on any home built before 1978 to test for lead based paint and, if a sufficient amount is present, to take several expensive and time-consuming precautions. Those precautions are generally prudent because lead dust can cause significant health problems.

    The Fixer Upper story highlights the relative obscurity of environmental regulations, even among people who are otherwise sophisticated. This was not only missed by the renovators and their employees but also the legal team for a television network (not to mention most fans of the show except, apparently, those employed by EPA).

    To the government’s credit, the settlement suggests that EPA recognizes this problem. Instead of throwing the metaphorical book at the company, EPA agreed to a more reasonable resolution: the company would pay a relatively small fine, remediate the houses where its work may have created a hazard, and would help raise awareness of the dangers of indoor environmental hazards and the regulations that apply to them.

    It would simply be unfair to impose harsher punishments on people who violate regulations they knew nothing about. Unfortunately, such punishments are commonly threated and doled out. For instance, a Wyomingite was threatened by EPA with financial ruin for building a environmentally friendly pond on his private property pursuant to a state permit, because he did not obtain a federal permit he had no reason to know he might need. That case turned even more egregious when it was shown that EPA hadn’t investigated whether that permit was required before issuing the threats (and, it turned out, the permit wasn’t required after all).

    Obscure environmental regulations can even trigger severe criminal punishments for conduct that no one would suspect might land them in the clink. The Ninth Circuit is currently considering a case which could result in criminal prosecution for anyone who accidentally steps on the wrong bug while hiking, disturbs the wrong bird while building a tree house, or hits the wrong rodent scurrying across the highway—even if they had no reason to know their conduct might be illegal. A similar issue will soon crop up in a case out of New York.

    As I’ve previously written, this is a problem unique to regulation. Where environmental issues are addressed through markets or other voluntary means, there are greater incentives to spread awareness of environmental concerns and how they can be avoided. When, for instance, renovators compete for business based on how effectively they addressed lead-based paint hazards, they have incentives to innovate and promote awareness of any cost-saving innovations they develop. Regulators, by contrast, ordinarily face no such incentives.

    In the Fixer Upper case, the agreement to raise awareness of the issue may prove doubly helpful. The lead-based paint regulations do not apply to DIYers, but only contractors who are paid to renovate homes. That’s most likely because it would be impossible for the federal government to enforce these rules on everyone who owns a home built before 1978 (the average home was built before then). Because these costly regulations only apply to professionals, they can increase the cost of hiring someone compared to doing the work yourself. However, DIYers are likely to know less about environmental hazards and take fewer precautions than a professional—even one who does not know of EPA’s regulations.

    Increased awareness won’t fix that problem. The price distortion remains. But it may at least encourage DIYers to take reasonable precautions. And, more importantly, EPA’s recognition of the greater importance of spreading awareness of its obscure regulations, rather than punishing innocent violations, is a positive sign.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

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