STEVE DOOCY: The EPA has no problem laying down huge fines and demonizing private businesses for causing environmental mishaps, after all, remember the BP oil spill? Oh, yeah. EPA fined them $5.5 billion dollars for the Deep Water Horizon disaster but what if the EPA causes its own disaster, let's say by releasing millions of gallons of goldmine waste into a river. Who is going to police them? Well, it has happened out in Colorado. And Fox News senior judicial analyst Judge Andrew Napolitano joins us. The EPA can't get in trouble, the company that did it can't get in trouble, who can be held responsible?
ANDREW NAPOLITANO: Well this, this is a lose, lose, lose for everyone involved Steven, good morning.
DOOCY: Good morning.
NAPOLITANO: It's a classic case of the government violating its own law, of the government's own contractors doing what the government punishes others who have done it severely. So, Exxon Valdez, BP oil spill that you talked about, those companies forked up billions and billions for the clean-up. Who is going to do it here? So, EPA hires a contractor, the contractor goes into a goldmine, the contractor breaches a wall of the mine and now this heavy metal is destroying hundreds of millions, probably billions of dollars worth of property.
DOOCY: There's lead, and arsenic, and all sorts of bad stuff going down the river.
NAPOLITANO: Guess what, the EPA indemnifies its contractor. Plain English, if you sue the contractor, the government bears the burden of the lawsuit.
DOOCY: Because otherwise, the contractor would not have taken the job.
NAPOLITANO: Correct, correct, because no contractor could possibly afford to repair damage like this. So, the question is can you sue the EPA's contractor? You have to show what's called gross negligence. Not an honest accident, not a mistake where they accidentally broke down a wall, but some standard of behavior, utterly heedless of the consequences. The federal government will end up paying for this. The taxpayer will end up paying for this.
DOOCY: The federal government is us, it's out of our pocket.
NAPOLITANO: The federal government is us. The land will never be returned to its pristine state. And the EPA will go on with its heavy thumb, doing to others what it won't do to itself.
