A Colorado-based NGO has dropped its 9th Circuit lawsuit challenging EPA's Multi-Sector General Permit for stormwater discharges associated with industrial facilities.
On one hand, this is a victory for EPA which apparently offered nothing to settle the case before the NGO threw up its hands.
On the other hand, the General Permit is only applicable in Massachusetts, New Hampshire and New Mexico, the three states that have not been delegated the authority to issue such a permit (as well as tribal lands and other lands not subject to state jurisdiction).
Why did the NGO bring this suit to begin with? Did it hope that the Biden Administration EPA would, when push came to shove, do something dramatically different than the Trump Administration EPA?
Whatever the reason, the NGO has apparently concluded that the current law and permit give it plenty of grounds to bring suits over stormwater discharges in the 9th Circuit and elsewhere. There are already several such imaginative suits pending on the west coast.
Are the regulators in Massachusetts less able to issue and enforce stormwater permits than than their colleagues in 47 other states? The answer is of course not. They are completely able and more able than most. And they already have authority under state laws and regulations that are broader in their reach than the federal law.
But the Massachusetts legislature has stood in the way, apparently because it doesn't want to bear the costs of regulating in this area borne by 47 other states. Uncertainty and the threat, if not the actuality, of litigation has been the unfortunate result of this dereliction for the regulated community, including the municipalities in which we live.
We deserve better.
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