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?
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.