Posted by: theoptimisticconservative | January 6, 2014

Alt v. EPA: Score one for the good guys

This case is a few months old, but its outcome just came to my attention.  It’s a case brought by a West Virginia farmer, 61-year-old grandmother Lois Alt, against the EPA, which in 2011 was threatening her with thousands in daily fines for the substances rainwater might encounter in running off across her land.

Alt and her husband, Tony, run a chicken farm in Old Fields, West Virginia.  Their farm is subject to EPA regulations for “concentrated animal feeding operations” (CAFOs), which under the Clean Water Act must take measures against the contamination of local waterways with “process wastewater,” the water used for things like flushing chicken pens and manure pits.  The Alts were in compliance with EPA requirements – but then, in 2011, EPA inspectors decided to require them to apply for an agricultural pollution permit, for trace amounts of the “manure, dander, feathers, and other pollutants” with which rainwater could come in contact.

If they didn’t apply for the permit, they’d be fined $37,500 per day.

It’s worth reading the summary here, which points out that, because of the topography around the Alts’ chicken coops, it was very unlikely that rainwater would run from that area into nearby Mudlick Run anyway.  But beyond the specifics of the Alts’ situation, the possibilities for a bulldozer regulatory regime are open-ended, if the principle of rainwater regulation is accepted.  Owners with neighboring properties who don’t even have farm animals could be subject to EPA fines or “permit” requirements, if the criteria are dander, feathers, and rainwater.  What would be the limit on the EPA’s portfolio for CAFO regulation?

Advancing from Round 1.

Advancing from Round 1.

Lois Alt decided it was important to have that limit set.  (Even though, ironically, almost everyone was urging her to “just sign the form.”)  The central issue is that the Clean Water Act gives the EPA no authority to regulate rainwater.  That’s the argument Alt and her attorney, David Yaussy, made in suing the EPA in June 2012.

In a move universally interpreted by experts as signifying the EPA knew its case was weak, the agency in December 2012 dropped the permit requirement for the Alts, and with it the threat of fines.  The EPA didn’t want the lawsuit to go any further, because the federal court judge might rule against the agency, and thereby set a precedent.  Thousands of CAFOs across the nation could challenge recent EPA decisions if the court ruled in the Alts’ favor.  The EPA might find itself restrained by the letter of the law, rather than having unfettered latitude to intimidate business and property owners with the threat of fines.

On 23 October 2013, Judge John Bailey, U.S. District Court for the Northern District of West Virginia, ruled for Lois Alt.

In December, the EPA filed an appeal with the Fourth Circuit Court of Appeals.  The ultimate outcome remains to be seen, but the progress of Alt’s case is at least interesting so far.  Over the last 40 years, the EPA and radical environmental groups have tortured the boundaries of the law, setting precedents Congress never intended by using the courts in sue-and-settle procedures against small defendants.  It’s been exceedingly rare for a small defendant to hang on and make the courts hold the EPA accountable.  Lois Alt has struck an unusual blow in that regard.

J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.

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Responses

  1. We can’t really blame the Congress, any recent or current president, or even the Supreme Court for the Alt’s hassle. It’s a direct consequence of bureaucracy, and not some abstract form of bureaucracy, There’s a name on a door on an office somewhere that matches the name on the paper work and approvals necessary to initiate this kind of madness. The individual with that name has the immense, practically limitless power of the US government to wield against an insignificant chicken rancher. It’s actually within the realm of possibility that if the Alts behaved in a certain manner that this situation could be resolved in a similar manner to the Branch Davidian fiasco.

    • But we can learn from our mistake in creating an EPA that can do these things.

      As I wrote in the piece, Congress didn’t intend for the EPA to carry on as it has. Some of the presidents have been friendlier to its agenda, others not. The courts haven’t universally ruled in its favor. EPA has won most of its precedents-in-practice by intimidating and wearing down small defendants, and not by winning battles in court.

      This IS a problem of how our current government has been constituted and empowered, and the fault for that lies with Congress, the presidents, the courts, and the voters who populated those three branches of government.

      That’s actually good news, because it means the solution lies with us as well. What would be insane is not taking the lesson that we need to not create “EPAs.”

      I’d rather get rid of one bureaucracy, and rewrite one or 10 laws, than have to worry year after weary year about policing the administrative decisions of hundreds of regulators.

  2. “I’d rather get rid of one bureaucracy, and rewrite one or 10 laws, than have to worry year after weary year about policing the administrative decisions of hundreds of regulators.”

    You and every other sentient being. But how is it to be done? The ethanol tragedy, for example, is probably going to be with us forever, despite the fact that even its proponents realize that it was a huge mistake. Once a policy is codified those that live on it have a vested interest in its continuance, even expansion. If the Republicans win every seat in the next national election, they will embrace some version of Obamacare just as fervently as the Democrats because they like power, too. There’s no real objection to big government in the Congress, both gangs are simply jockeying to be the dispenser of favors.

    • If the Republicans win every seat in the next national election, they will embrace some version of Obamacare just as fervently as the Democrats because they like power, too.

      Because I came to this several days late – and because it is an aberrant comment from a usually smart and conscientious guy – I almost let that pass… but then decided I could not. To say that the Republicans have not the purest hands is a world away from saying there’s no difference between parties. For starters, I know you are aware of Obamacare’s legislative history: the strictly party-line votes and public-be-damned procedural irregularities that skirted, and arguably crossed, the bounds of law and constitution.

      But set that aside. Is there a party that sets aside power and party interest for the national interest? – say, when a president of that party abuses the office? Compare Republicans in Congress during the Nixon abuses to Democrats in Congress during Clinton and Obama. [I would go back further, but don’t want to re-litigate the 19th century.]

      IOW, pick your measure of integrity, and use it to find party correlations. Saying “They’re all the same” is intellectually lazy and a moral dodge that cheapens the sacrifices made by so many.


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