The EPA Pushes the Envelope, Again

In accusing the Environmental Protection Agency of trying to
regulate “water itself as a pollutant,” Virginia Attorney General
Ken Cuccinelli is not showing an excess of exactitude.
But his looseness is rhetorical and harmless. The EPA’s is
neither.Last week federal judge Liam O’Grady sided
with Cuccinelli when he ruled that the EPA had
overstepped its bounds. As a measure of just how far the EPA had
overreached, note that Cuccinelli’s suit against the EPA was
joined by Fairfax County, led by Board of Supervisors
chairman Sharon Bulova.Bulova, a Democrat, is nobody’s idea of an environmental menace.
A longtime advocate for commuter rail and mass transit, she started
a Private Sector Energy Task Force to increase energy efficiency,
sustainability, and “green-collar” jobs in the county.
 Nevertheless, she and other county leaders objected when the
EPA tried to limit the amount of stormwater runoff into
the 25-mile-long Accotink Creek, which empties into
the Potomac.  “When people talk about federal agencies
running amok, this is exactly what [that] looks like,” said GOP
Supervisor John C. Cook in July. “The EPA’s overreach is so extreme
that the Democrats on the board realized that, even in an election
year, they had to do this for the county.”Concerned about sediment in the Accotink, the EPA had
sought to cut stormwater runoff nearly in half—a proposal
that would have added perhaps $200 million to the roughly $300
million cost of addressing sediment itself.But as O’Grady noted, while the EPA can regulate sediment, which
is considered a pollutant, it has no authority to
regulate stormwater—which is not.The EPA claimed—notably, “with the support of Virginia[‘s
Department of Environmental Quality]”—that it could
regulate stormwater as a proxy for sediment itself, even
though it had no legal authority to do so, because nothing
explicitly forbids it to do so. As Cuccinelli said, “logic
like that would lead the EPA to conclude that if Congress didn’t
prohibit it from invading Mexico, it had the authority to
invade Mexico.”Why would the EPA insist on regulating stormwater, which it
has no authority over, instead of simply regulating sediment? After
all, it has written rules for sediment literally thousands of
times. That insistence makes no sense. But it does look like part
of a larger pattern.Last spring, the Supreme Court ruled against the agency in the
case of Mike and Chantell Sackett.
The Sacketts owned a piece of land, a little larger than
half an acre, in a growing lakefront development in Idaho.
They were building a vacation home on the spot when the EPA
declared it might be a wetland and ordered them to cease
construction, and restore the land to its prior state or face fines
of up to $75,000 a day. The agency decreed that
the Sackettshad no right to challenge the order in court.The Supreme Court unanimously call that bunk. It’s not
easy to get Justices Antonin Scalia and Ruth Bader
Ginsberg on the same page, but the EPA managed to do so. The agency
also drew the wrath of The Washington Post,
which editorialized that “The EPA Is Earning a Reputation
for Abuse.”  The editorial began by condemning the
now-infamous remarks of now-former EPA administrator
Al Armendariz, who compared his enforcement philosophy to
Roman crucifixions: “They’d find the first five guys they saw and
they’d crucify them. And then, you know, that town was really easy
to manage for the next few years.”Troubling stories about the EPA just keep piling up.
In Texas, the agency went after Range Resources Corp. for
allegedly polluting two wells. The company racked up more than $4
million in fees defending itself before the EPA
grudgingly admitted it had no proof Range Resources had
contaminated anything.In July, the federal district court in D.C. ruled that the EPA
had overstepped its bounds regarding Appalachian coal operations.
That ruling followed another  concluding the EPA had
no business revoking a waste-disposal permit, issued by the Bush
administration, for a West Virginia mine.  Judge Amy
Berman Jackson—an Obama appointee—called the agency’s action
“a stunning power for the EPA to arrogate to itself,” and accused
the agency of “magical thinking.”With the possible exception of a few anarchist cells, nobody
questions the need for environmental regulation—or the EPA’s
authority to enforce environmental laws. But those objecting to the
agency’s abuses—Bulova, Ginsberg, The Washington
Post, Judge Jackson—are hardly anarchists. They
aren’t even Republicans. That ought to ring warning bells; this
isn’t just a partisan vendetta. The EPA’s long train of abuses and
usurpations suggests an institutional culture that sees the law as
an impediment, rather than a guardrail. It also offers a reminder
that those who wield power tend to push the boundaries of their
authority. They will succeed, too—unless others push back.

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The EPA Pushes the Envelope, Again

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