Court rules against EPA in Virginia

Important US District CT ruling on VA water suit against EPA – Back door land use control at Fed level. January 17, 2013, 7:01 p.m. ET  The EPA's Stormy Weather The agency loses another case, this time over water regulation. If Washington gave awards for creative regulatory overreach, the Environmental Protection Agency would sweep the field. Fortunately, the courts are getting wise to its nonsense, as shown by a stinging legal rebuke this month to the agency's novel theory that water is a pollutant.   The case concerns Virginia's Accotink Creek, a 25-mile tributary of the Potomac River. In April 2011 the EPA took the unprecedented step of demanding that Virginia's Fairfax County and the state's Department of Transportation restrict the amount of storm water that runs into the creek.   The EPA had never issued such a demand, for the simple reason that the Clean Water Act limits its role to regulating "pollutants." Last we checked, water was the substance protected by the Clean Water Act.   The agency's way of getting around this hitch was to claim that storm water is stirring up sediment, which is a pollutant. Ergo storm water is a "surrogate" for sediment and open to EPA rules. If allowed to stand, that argument would open sweeping new EPA power over local land use.   The only way for Fairfax to have met the EPA's demands to cut storm water by nearly half would have been to spend more than $200 million tearing down existing homes and businesses and replacing them with grass or storm ponds. While re-greening the suburbs might be an ideological goal of the Obama EPA, it isn't mentioned in the Clean Water Act.   All of this was breathtaking enough to inspire the Democrat-controlled Fairfax Board of Supervisors to join in GOP Attorney General Ken Cuccinelli's lawsuit. In early January U.S. District Judge Liam O'Grady agreed with Mr. Cuccinelli that the agency is drowning in audacity.   The EPA, said Judge O'Grady, is charged with regulating "appropriate pollutants; that does not give them authority to regulate nonpollutants." Judge O'Grady did a further service by warning the EPA against trying this in other contexts. The agency had argued it is entitled to regulate storm water for the reason that nothing in the statute specifically forbids it from doing so. Or, as Mr. Cuccinelli more colorfully summed up EPA's logic, "if Congress didn't prohibit it from invading Mexico, it had the authority to invade Mexico.   "The EPA has it backward, ruled Judge O'Grady: "The question is whether the statute grants the agency the authority it is claiming, not whether the statute explicitly withholds that authority." That's a rule other Obama agencies might follow. The ruling throws into doubt EPA attempts to impose storm-water rules in at least three other instances (two are pending in court), and no doubt the agency had similar plans for many of the 3,700 water bodies for which it regulates sediment. "This wasn't just a little power grab," Mr. Cuccinelli tells us. "This would have given the EPA enormous new say over land use across the country."Judge O'Grady's opinion is sharp enough to have so far kept the EPA mum on whether it will appeal. In this instance, that silence is golden.   Source: WSJ, 1/17/13.  A version of this article appeared Jan. 18, 2013, on page A14 in some U.S. editions of The Wall Street Journal, with the headline: The EPA's Stormy Weather. http://professional.wsj.com/article/SB10001424127887323596204578244162699645422.html