Following its designation of carbon dioxide as a pollutant, the Environmental Protection Agency will go one step further, appearing in federal court on Friday to seek the designation of a new ecological scourge: Water.
The EPA, hoping to improve health of Virginia’s environment, has ordered a 50 percent reduction in the amount of water flowing daily through Fairfax County’s Accotink Creek in Northern Virginia. That could cost the county and state up to half a billion dollars in land acquisition and storm-water runoff costs.
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But the real question is what authorizes the federal agency to regulate the flow of water on the state and local levels.
The Fairfax County Board of Supervisors has joined forces with Virginia Attorney General Ken Cuccinelli in a lawsuit seeking to block the mandate. State and local officials charge that the EPA move far exceeds its legal authority.
“EPA literally is treating water itself—the very substance the Clean Water Act was created to protect -- as a pollutant,” states the complaint Virginia officials have filed.
The Clean Water Act authorizes the EPA to establish limits, called the Total Maximum Daily Load (TMDL), for how much pollutants it will tolerate in a waterway. But the TMDL for Lake Accotink appears to mandate how much water, rather than how much pollutants, shall be permitted to flow through that vital Northern Virginia waterway.
Cuccinelli, a former state senator from Northern Virginia, told Newsmax.TV in an exclusive interview that he is reaching across the aisle to work with Democrats in order to try to rein in the EPA.
“You know it’s bad when a partisan Democrat board of supervisors, like Fairfax County, will join us to sue the EPA. That’s how bad it’s gotten,” says Cuccinelli, considered an unabashed champion of limited government by the grass-roots conservative community. “I refer to it as the Employment Prevention Agency. They’re very good at that.”
The legal confrontation stems from longstanding EPA concerns about the health of aquatic life in Fairfax County’s Accotink creek, which ultimately feeds into the Potomac River and the Chesapeake Bay.
One measure of the significance of Friday’s legal face-off: Cuccinelli, who is poised to become the GOP nominee for governor of the Old Dominion, will personally argue the case Friday in U.S. District Court in Alexandria, Va.
The Democratic-dominated Fairfax County Board of Supervisors was initially reluctant to join forces with Cuccinelli, concerned with the optics of teaming up with the stalwart Republican conservative in an election year.
But in July, facing hundreds of millions in compliance costs, the Supervisors decided they had to have the attorney general’s legal firepower on their side if they hoped to prevail over the increasingly assertive EPA, led by administrator Lisa Jackson.
It’s not the first time Cuccinelli, who gained national prominence in his fight against the Patient Protection and Affordable Care Act, has tried to constrain the EPA. He is one of 14 state attorneys general who challenged the EPA’s 2009 ruling that it could regulate carbon dioxide as a pollutant.
In June, a U.S. appeals court upheld the EPA does have authority to classify carbon dioxide as a greenhouse gas, given the threat to public welfare.
The fight over the EPA’s jurisdictional limits now appears to be shifting from air to water pollution.
Fairfax County Supervisor John Cook, a Republican, told the Washington Post: “When people talk about federal agencies running amok, this is exactly what it looks like. 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.”
Cuccinelli charged the EPA has exceeded its legal authority.
“If you want to boil down what ties us all together as Americans,” Cuccinelli told Newsmax, “it’s that is a nation of laws and not of men. Some people in government forget that sometimes.”
The EPA has invoked TMDL limits for flow levels in several Missouri waterways, which have provoked lawsuits there as well.
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