More Lawlessness at EPA

Thursday, April 27, 2006

BARELY A MONTH ago, the U.S. Court of Appeals for the D.C. Circuit issued a stinging rebuke to the Environmental Protection Agency's efforts to rewrite federal clean air law to weaken rules concerning power companies upgrading old coal-fired equipment. This week, a cross-ideological panel of the court unanimously accused the agency, once again, of defying federal environmental law -- this time concerning efforts to clean up the Anacostia River. The panel's strong, derisive language should send a message to the agency to take congressional enactments seriously, as written, not as the agency wishes Congress had written them.

Decades after the passage of the Clean Water Act, the Anacostia remains one of the dirtiest rivers in the country. To redress such problems, the law requires the EPA to identify pollutants and set what the law calls "total maximum daily loads" -- the daily dumping the river can take for each of these pollutants, measured at a level adequate to "implement the applicable water quality standards." The trouble for the Anacostia, and for a lot of dirty rivers, is that measuring the maximum load by the day requires expensive changes. Heavy rains can cause sewage to overflow into the river day, killing fish and blotting out sunlight necessary for plant life. Instead of forcing the D.C. government and the D.C. Water and Sewer Authority to create systems to prevent this, the EPA read the word "daily" to mean -- as it put it in one brief -- "non-daily" and measured the total maximum load for different pollutants on a seasonal and annual basis. This effectively allows big dumps now and then, as long as the total over time stays within specific limits.

This move was not, as was the power-plant rule, a crude effort by the Bush administration to rewrite the law to favor polluters. For one thing, the EPA seems to have adopted this reading of the statute long before the current administration; what's more, one federal court of appeals actually adopted it. That said, it is plainly erroneous, as was argued by the D.C. Circuit panel, which included controversial Bush-appointed Judges Janice Rogers Brown and Thomas B. Griffith. Wrote Judge David S. Tatel for the panel, " 'Daily' connotes 'every day.' Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of '[g]ive us this day our daily bread' as a prayer for sustenance on a seasonal or annual basis." Federal regulators shouldn't need such judicial reminders that the law means what it says.

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