In a prior post discussing the impact of the Supreme Court’s rulings limiting federal jurisdiction over waterways, I discussed how state’s may feel increasing pressure to fill the gaps in federal authority. A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak. The Globe reported the following:
The Bush administration didn’t pursue hundreds of potential water pollution cases after a 2006 Supreme Court decision that restricted the Environmental Protection Agency’s authority to regulate seasonal streams and wetlands.
From July 2006 through December 2007 there were 304 instances where the EPA found what would have been violations of the Clean Water Act before the court’s ruling, according to a memo by the agency’s enforcement chief.
Two questions I have relative to this story. First, does this foretell a strange trend where US EPA starts referring cases to the states for enforcement? Second question- when will the battle shift to permitting? It cannot be long before a company challenges federal authority to require an NPDES permit. The most likely candidate in my mind will be something like the requirement to obtain a permit for construction activities.