Man Bites Dog

Poultry farmer Sues EPA

The U.S. Environmental Protection Agency is still exerting a permit power that chicken growers contend it doesn’t have, so a federal judge said he won’t dismiss a lawsuit by a West Virginia farmer the agency had accused of polluting the Chesapeake Bay watershed.

The EPA argued Lois Alt’s lawsuit was rendered moot in December, when it withdrew violation notices and proposed fines against her Eight is Enough farm in Hardy County. But Alt, the West Virginia Farm Bureau and the American Farm Bureau want their day in court, claiming the EPA’s actions in her case have implications for farmers throughout the region.
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U.S. District Judge John Preston Bailey agreed last week, denying EPA’s motion to dismiss. The agency had not filed a response as of Tuesday.
..“EPA’s adherence to its underlying position … demonstrates that the agency’s challenged assertion of authority not only can be ‘reasonably expected to recur,’ but in fact is ongoing even now,” Bailey wrote.

“EPA plainly has not withdrawn, rescinded, repudiated or otherwise altered its legal position that — despite the statutory exemption for agricultural storm water — farmyard storm water must be regulated through a federally mandated permit,” he wrote.Although EPA did send a letter withdrawing Alt’s violations, Bailey noted, it did not explain the basis for its change of heart. Nor is Alt’s mere compliance with the agency’s demands enough to make the case moot.

EPA "leaned forward" with the suit against the Alts, hoping it could establish a new regulatory authority by fiat, and the inability of the Alts to fight effectively.  When the judge let the Farm Bureaus join the fight, and it looked like EPA would lose, and establish that as a precedent, they retreated, hoping to fight another day.  Now it looks like they might have to fight a suit on ground they don't think they can win on, and lose that fight for good.