Court Sides with Virginia AG Against EPA, Rainwater 'Not a Pollutant'

Virginia Attorney General Ken Cuccinelli won a decisive initial victory against President Obama’s Environmental Protection Agency (EPA) in federal court, stopping a massive federal power grab. The case now goes up on appeal.

The EPA invoked its power under the Clean Water Act (CWA) to declare that sediment carried by rainwater runoff into a particular creek was possibly impacting microorganisms in that creek. Since stormwater is what carries the sediment into the creek, the EPA essentially declared the rainwater a pollutant and ordered Virginia to develop a system to control where the rain goes.

Cuccinelli, an outspoken conservative Republican who made a national name for himself in filing the first federal lawsuit against Obamacare, filed suit in U.S. district court. He says the decision of Obama’s EPA to essentially designate rainwater a pollutant is “particularly asinine,” given that water is by its very nature clean and part of the natural environment.

This goes beyond the federal government asserting the right to command state governments. Since rainwater is found everywhere, claiming the authority to regulate it under the CWA is a claim of massive new federal power, one that could be used to dictate to every homeowner in the country how they shall deal with this water. It would empower federal bureaucrats to micromanage everyone’s property decisions, undercutting one of the essential rights Americans possess.

On Jan. 3, Cuccinelli won the first round in Virginia Department of Transportation v. EPA. In his opinion, Judge Liam O’Grady notes that since the parties agree that stormwater is not a pollutant, the EPA cannot issue regulations directing states (and doubtless homeowners as well) what they must do with it. “EPA may not regulate something over which it has no statutorily granted power… as a proxy for something over which it is granted power…”

EPA will now surely take the case to the U.S. Court of Appeals for the Fourth Circuit, which sits in Richmond, Va.

Breitbart News legal contributor Ken Klukowski is a fellow with the American Civil Rights Union.