Virginia scores an important victory against the EPA

Update: Statement from Virginia Attorney General Ken Cuccinelli’s office:

“EPA’s thinking here was that if Congress didn’t explicitly prohibit the agency from doing something, that meant it could, in fact, do it,” said Cuccinelli. “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.  This incredibly flawed thinking would have allowed the agency to dramatically expand its power at its own unlimited discretion. Today, the court said otherwise.”

EPA also claimed that it could regulate water flow because it was a surrogate measure for regulating sediment.  To that argument, Judge O’Grady responded, “EPA may not regulate something over which it has no statutorily granted power… as a proxy for something over which it is granted power.”  He continued, “If the sediment levels in Accotink Creek have become dangerously high, what better way to address the problem than by limiting the amount of sediment permitted in the creek?”

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it,” O’Grady said.

EPA was literally treating water itself–the very substance the Clean Water Act was created to protect–as a pollutant,” the attorney general noted. “This EPA mandate would have been expensive, cumbersome, and incredibly difficult to implement. And it was likely to do more harm than good, as its effectiveness was unproven and it would have diverted hundreds of millions of dollars Fairfax County was already targeting for more effective methods of sediment control.”

I hate to be a pain in the neck during Cuccinelli’s moment of triumph, but honor compels me to cite him for abuse of the word “literally,” unless the EPA administrators dictated the defeated regulations to underlings while floating in a swimming pool.


Fox News reports on an important court defeat for the Environmental Protection Agency, which might help to bring that out-of-control agency back down to Earth… which the EPA apparently believes it has an open-ended mandate to “protect.”

Virginia officials scored a key victory Thursday in their battle with the  Environmental Protection Agency over what EPA critics describe as a land takeover.

U.S. District Judge Liam O’Grady in Alexandria ruled late Thursday that the  EPA exceeded its authority by attempting to regulate stormwater runoff into a  Fairfax County creek as a pollutant. O’Grady sided with the Virginia Department  of Transportation and the Fairfax County Board of Supervisors, which challenged  EPA’s stormwater restrictions

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate  it,” O’Grady said.

The pushback against the EPA was spearheaded by Virginia Attorney General Ken Cuccinelli, who has probably earned the coveted designation of “arch” conservative from the media, since he’s been effectively acting upon all these funny ideas about limiting the power of well-meaning centralized bureaucrats.  But it was a bipartisan struggle, because Democrats on the Fairfax County Board of Supervisors supported Cuccinelli’s efforts.

The true significance of this case is apparent when considering the EPA’s justification for its power grab:

The EPA contended that water itself can be regulated as a pollutant if there’s  too much of it. The agency says heavy runoff is having a negative impact on  Accotink Creek and that it has the regulatory authority to remedy the situation.

[…] In legal filings, the EPA says that its plan is “in harmony with the broader purposes” of the Clean Water Act, including “reducing the water quality impacts  of stormwater.”

“There is no possibility of homes being removed in this process,” Simon  Rosenberg, founder of the New Democrat Network, said. He called the claim by  Cuccinelli an “overstatement.”

(Emphasis mine.)  Junk-science afficionados may recall the “dihydrogen monoxide” hoax, one of the Internet’s earliest viral memes.  A group of college kids sought to lampoon public hysteria about “unnatural” chemicals, and the media’s boundless appetite for junk science, by circulating mock white papers and public health advisories concerning the perils of an ominous new chemical compound, dihydrogen monoxide.  This chemical was said to be the primary component of acid rain, it eroded the landscape, and could be deadly if inhaled.  In reality, “dihydrogen monoxide” is just another name for H2O – in other words, water.  All of the frightening qualities attributed to water by the hoaxsters were absolutely true: water is the major component of acid rain, it erodes land formations over time, and it most certainly can kill you, if you inhale it.

Fast-forward a couple of decades, and the EPA has apparently embraced the principles offered by the “dihydrogen monoxide” pranksters as satire: “water is a pollutant if there’s too much of it,” so wherever one finds an abundance of water, they will also find the power of the Environmental Protection Agency.  Quibbling over Cuccinelli’s estimate of the monetary danger to Virginia homeowners, which Cuccinelli pegged at over $300 million, is beside the point.  We are drowning in the “broader purposes” of constantly growing regulatory acts.