Inside EPA (subscription required) reported this week that a group of Democratic state attorneys general have filed an amicus brief supporting EPA's appeal of a 9th Circuit Court of Appeals decision holding that EPA had authority to include in NPDES permits "narrative prohibitions on discharges that cause or contribute to violations of applicable water quality standards." According to Inside EPA, the thrust of the amicus brief is that including the narrative provisions adds "needed flexibility for permittees that would otherwise result in overly burdensome mandates."
In other words, San Francisco and the many members of the regulated community supporting San Francisco's position don't know what's good for them. Pardon me if you have heard this rant before, but it's one of the great flaws of the environmental movement that environmental advocates, both inside and outside of government, always think that they know what's best for the regulated community.
I think that the government attorneys should go ahead and make their arguments, but should check their self-righteousness at the door. They should resist suggesting that their positions are in the best interests of the regulated community. Have the courtesy to allow the regulated community to reach its own conclusions regarding what's in its interests.
On the general issue of providing more "flexibility," the regulated community can reasonably conclude that such flexibility is almost universally implemented in practice as a one-way street—EPA interprets such provisions as providing it with more flexibility to impose requirements that it wants to impose but almost never acknowledges the flexibility that the permit holder wants to take advantage of.
In other words, the Government may be here to help, but it's too often an offer that the regulated community would prefer to refuse.
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Originally published 19 September 2024
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