Ever the schoolyard bully, the EPA has been pushing its agenda against the will of the states, at least until the principal intervenes.

A minority (that’s the Republicans) report by the U. S. Senate Committee on the Environment & Public Works asserts that the EPA is in violation of “cooperative federalism”, in which the EPA would set national standards on an emissions rule and allow states to administer the regulation in the most cost effective way. The rationale is that states and localities are better suited than the feds to design and implement compliance strategies.

The report says the agency has failed to consult with states or has coerced states to adapt stringent regulation that come at a huge cost to the state’s citizens and economy.

The report focuses on “sue and settle” agreements the EPA makes with environmental activist organizations in which the agency, after being sued by an environmental group, enters into a consent decree allowing regulations to move forward without comment from the states or regulated industries.

The bully doesn’t always get its way.

Alt v. EPA was about the EPA’s assertion of regulatory authority over stormwater runoff from Ms. Alt’s farmyard. She challenged the EPA’s findings that she had violated the Clean Water Act. The case was about the discharge of “particles, dust and feathers” from Ms. Alts’ poultry farm into a federal waterway. Inother words, when it rained, chicken poo-poo ran into “Mudlick Run”.

The EPA found that Ms. Alt was in violation of the Clean Water Act and threatened a civil action in which she could be subject to penalties of up to $37,500 per day. The question was whether Ms Alt’s activity was exempt from liability under the agricultural storm water exception to the definition of a “point source”.

I’ll skip the legal analysis and get to the larger point: According to the court,“it appears to be a central assumption of the EPA’s position that the agricultural stormwater discharge exemption had no meaning whatsoever from the time the exemption was added to the statute until 1987 until the EPA promulgated its new regulations in 2003.”

In rejecting the EPA and ruling for Ms. Alt, the court concluded that “common sense it the most fundamental guide to statutory construction.”

In Iowa League of Cities. v. EPA, the federal 8th Circuit ruled that the agency was pushing a new interpretation of its wastewater treatment rules in letters sent to cities in Iowa in order to prohibit selected internal techniques for treating wastewater during high-flow storm events.

If you would rather not read the opnion, I refer you to the NCPA’s Energy and Environment  newaletter by Sterling Burnett, from which I plagiarize joyfully. The ruling says that what goes on within the plant is not within the EPA’s purview as long as the effluents leaving the plant meet pollution limits. If the EPA wants to regulate an activity, it must go through the rule making process, not simply give opinions. The EPA can’t contradict its own rules.

Makes sense to me.