Protecting Water Resources While Safeguarding Against Government Overreach
Lots to cover on the water front this week, from the spill in West Virginia causing over 300,000 to go without water to a new GAO report calling for Congress to authorize EPA to regulate stormwater from farms. But for starters, the West Virginia issue is a reminder of the value of water, and the regulations in place to ensure our water is clean and safe to use for consumption and recreation. For those 300,000+ people without water for the last week, it’s also a reminder of how much we take for granted when we turn on our taps and flush our toilets with little thought or regard for the costs of the infrastructure to provide that water. I’ve mentioned it previously, but the Value of Water Coalition is attempting to better educate the public and our elected officials on critical importance of reinvesting adequately in our water infrastructure to support the economy and communities. Water is linked to everything we do in life. The West Virginia matter will no doubt result in more calls for Congressional hearings to review the adequacy of our laws and regulations, including inspections and enforcement, to prevent these types of spills in the future.
I’ll have more thoughts on potential fixes in future posts, including a better approach to integrating the federal Safe Drinking Water Act and Clean Water Act goals and programs. I was listening to NPR’s Diane Ream show yesterday where Diane provided an hour-long update on the spill in West Virginia. She was aghast by the fact a chemical company was located “upstream” from a drinking water facility. But what many don’t realize is that along the Ohio and Mississippi Rivers thousands of drinking water intakes are located downstream from sources and potential sources of pollution. Along the Ohio River alone, there are over 250 tank farms and refineries. Consequently, source water protection must remain a high priority for EPA, the states, and communities dependent upon clean, safe, and sustainable drinking water.
The second big story of the day is a new General Accounting Office report out that calls upon Congress to give authority under the federal Clean Water Act to regulate agriculture. It’s a tedious and thorough report on the challenges to cleaning up water pollution on billions of diffuse and nonpoint sources, but the pullquote is:
Without changes to the act’s approach to nonpoint source pollution, the act’s goals are likely to remain unfulfilled.
Doesn’t seem like much, but the GAO just stuck its boot in the proverbial pile of manure. This is an extremely complicated issue – politically, environmentally, socially, and legally. For those unfamiliar with the federal Clean Water Act, agriculture is largely exempted from federal regulation. With the exception of large concentrated animal feeding operations – that are more industrial in nature – Congress sought fit to exempt farmers from federal permitting and, instead, directed EPA to work with states and landowners to voluntarily reduce pollution runoff from farms and other “nonpoint” sources. To argue that agriculture needs to do more is not an indictment of the entire industry. Many, if not most, farmers take great pride in conserving the land and water resources. And, increasingly, farmers are doing more to protect water quality by fencing cattle out of streams, establishing vegetated riparian buffers, and adopting “smart farming” or precision agricultural practices to reduce the amount of fertilizers and other nutrients that flow off their property. Tracy Mehan in his post earlier this week, “The ‘Good’ part of the Farm Bill“, praised the conservation title and Alex Echols urged more agriculture conservation to improve water quality. Make no mistake,if Congress were to grant EPA more authority to regulate farmers, it would reduce water pollution, but it would also come with a price tag, in terms of higher production costs and food prices passed onto the consumer. It may also result in certain privacy concerns, as Jillian Kay Melchior argues over at NRO, The EPA’s Privacy Problem.
There has been considerable debate and discussion on this blog on how best to achieve balancing environmental protection while safeguarding property rights, when environmental externalities are a very real and big problem. The argument really revolves around the question of whether more federal regulation is needed or not. Are there other institutional arrangements, such as markets or common law principles, that would work better. Richard Epstein, one of the great legal minds of our time, has a new article in the Harvard Journal of Law & Public Policy titled “Modern Environmentalists Overreach: A Plea for Understanding Background Common Law Principles.” Epstein begins his argument:
One of the major issues of our time involves the institutional arrangements that should be introduced in response to damage caused by various forms of pollution. In dealing with this issue, there is a widespread agreement that pollution from natural sources is a risk to be controlled, and that pollution from human sources creates dangers that are the proper subject of legal constraint, be it government regulation, state or federal, or by private rights of action under either federal or state law, brought individually or by classes. Any supposed laissez-faire regime that would leave the question of pollution to the “market” is no more plausible than a laissez-faire regime that assumes that the state need not supply some remedy against the other forms of aggression that one individual takes against the rest of the world. The only question here is that of technique, which leads those interested to worry about two primary issues. The first involves the proper analytical framework to deal with environmental issues. And the second deals with the distinctive treatment of some specific issues in environmental law. In both areas, it is critical to be attentive to the incentives that the rules create for opportunistic behavior on all sides, the risks of over- and under-enforcement of environmental safeguards, and the administrative costs of putting any complex regulatory scheme into place.
Epstein goes on to discuss other frameworks, such as common law, compensation, and harm principles, and excoriates recent administrative abuses and overreach by EPA, including the recent Sackett v. EPA, where EPA sought to stop construction on lands purportedly containing wetlands subject to federal CWA jurisdiction. This is not just the rantings of a conservative legal scholar, a prominent jurist on the political left, Professor Jonathan Turley, the Shapiro professor of public interest law at George Washington University has written recently about the rise of the fourth branch of government as “dangerously off kilter.”
The Supreme Court decision in Sackett was 9-0 in favor of the Sackett’s. It is one of the most egregious cases of federal overreach in recent memory – not one of EPA’s finer moments – where the Sackett family, facing tens of thousands of dollars in fines, and possible criminal sanctions, were denied a fair hearing on whether or not wetlands actually existed on their property. I link to the SCOTUS decision here, and the audio of the oral argument here. For those who have never attended or listened to a Supreme Court argument, I would commend it for listening. Even to the liberal Justices, all notions of fair play and substantial justice had been violated in this case. The protection of water resources are vital, as are the means and judgments of our government, through the decisions and actions of agencies, like EPA and DOJ, to protect those resources, which are equally, if not more, vital to the proper functioning of our society. Balance will save the day and perhaps our children’s future.