The EPA has issued at least two other rules in the last decade designed to force large livestock farms to apply for Clean Water Act pollution permits. Both were struck down in court.
The first, in 2003, was an EPA permit requirement for animal farms that have a “potential to discharge” pollutants into public waterways. The Second Circuit Court of Appeals invalidated that rule in 2005, saying the government couldn’t penalize a farmer for what might happen in the future.
Three years later the EPA revised the wording, saying it would require Clean Water Act permits for farms that “proposed to discharge” polluter wastewater. The Fifth Circuit Court of Appeals ruled against that language last year in a case brought by the National Pork Producers.
Alt’s legal challenge was made possible after the Supreme Court handed down a unanimous decision in March, ruling that an Idaho couple could sue the EPA over a separate Clean Water Act permitting order. (RELATED: High court sides with Idaho property owners’ property right over EPA)
In that case, the agency had sought to fine Mike and Chantell Sackett $37,500 per day for pouring landfill, without a federal government permit, into a portion of the property they had purchased to build their dream home — a parcel of land the EPA contended was a “wetland.”
A federal appeals court had sided with the EPA, telling the Sacketts they couldn’t challenge the government in court until after a lengthy permitting process that would have given the agency the upper hand. But the Supreme Court overturned that ruling in a 9-0 decision that property rights advocates saw as a slap against overzealous and punitive EPA enforcement.
“The EPA used bullying and threats of terrifying fines,” Mike Sackett said after the March ruling, “and has made our life hell for the past five years. It said we could not go to court and challenge their bogus claim that our small lot had ‘wetlands’ on it.”
In a concurring opinion, Justice Samuel Alito wrote that if the EPA had prevailed, it “would have put the property rights of ordinary Americans entirely at the mercy” of the government.