Virginia v. EPA

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Tenth Amendment to the Constitution.

It is time to hit the reset button on Tenth Amendment Jurisprudence and Virginia has an opportunity make that push.

Many of America’s Founding Fathers were concerned that if the federal government were too powerful, it would become tyrannical. For this reason, many checks and balances were put on the federal government’s power. One of these was that Washington should be restrained by the powers of the states, which would retain a high degree of sovereignty.
James Madison, yes, a Virginian, and known as “the father of the Constitution,” wrote in The Federalist, No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

I wish.

The reach of the federal government has stretched so far, the ability of the states to control their own destinies seems to have completely disappeared. Take, for example, a small stream near our home, Accotink Creek. It meanders through a largely suburban community, often flanked by major roads (e.g., the Washington D.C. Beltway), dumps into a man-made lake, discharges over the dam, wanders through more homes, enters two different military installations and then discharges into the Potomac River.

Obviously, this creek is not a lane of commercial transportation. Notwithstanding that, the military permits only military personnel within its borders. The creek itself is crossed heavily with down timber and its depth is insufficient to maintain trout year round. It is possible to canoe down parts of the creek, but, as one professional canoeist put it, “It is better for wading than boating.” The fishing enthusiasts also have opinions. “The locals poach the trout immediately after they are released, and the legal take is usually zero. My advice, don’t go there.”

In other words, although this creek connects navigable waters, and although it is possible to float a boat in it, there simply is no interstate commercial value to this stream.

But EPA doesn’t care about that. Rather, it wishes to impose new, draconian controls on how much water will be allowed to enter the stream.

Now, keep in mind, we are talking about water, not some pollutant.

EPA thinks too much water will scour the side of the stream and cause dirt to cover the stream bottom, making the river less amenable to fish. This is possible, but the local authorities are already aware and have taken countless steps to maintain this stream, in keeping with their budget, other land uses, the needs of the locale and the importance of this stream in light of all the others in the area.

EPA doesn’t really care about this balancing of needs and interests. It simply wants that stream to be the home for fish and it thinks that control of water flow is necessary.

Now, lets think about what EPA demands in reality. EPA suggested that the percentage of impervious surface within the Accotink Creek watershed should be reduced to between 10 and 14 percent in order to reduce the amount of water entering the stream, all in order to prevent further watercourse erosion and degradation of the bugs that live on the bottom of the stream. Such a criterion, even if expressed as a goal, is not technically, economically or politically practical. In the words of one elected official, “That is just stupid.”

As Fairfax County explained to EPA, the Accotink Creek watershed is from 78 to 83 percent developed (depending on analytical approach). Further, this highly suburbanized watershed, the vast majority under private ownership, is transected by numerous major transportation corridors including Interstate Routes 66 and 495. Fully 15 percent of the developed area in the watershed is in transportation – alone producing 11.7 to 12.5 percent impervious surface within the watershed. To meet an impervious surface criterion of 10 percent is impossible absent removal of roads. To meet a 14 percent impervious surface criterion would require removal of nearly all private homes and commercial buildings, and associated drives and parking surfaces. Even if that were possible, it would still be necessary to remove most of the churches on this watershed. That is disallowed by law.

After public comment, EPA dropped the impervious surface approach, replacing it with a “maximum flow” criterion that has the identical effect – lose the houses, churches, roads and put it back the way it was the day Virginia Dare took her first breath.

In the simplest terms possible, EPA wants to decide how Virginia and Fairfax County make land-use decisions.

This effort by EPA to supplant the most traditional of State powers is simply not constitutional.  The tension between the Commerce Clause and the Tenth Amendment needs to be reexamined at law as a pure constitutional matter and now is the time for Virginia’s new Attorney General to join the gathering state effort to re-invigorate Tenth Amendment rights.

As a Virginian, I wonder if George Mason was right to be angry at the Constitutional Convention.  Although they eventually accepted his bill of rights, they left off several additional “rights” he proposed, one of which was: “No Navigation Law, or Law for regulating Commerce, shall be passed without the Consent of Two-Thirds of the Members present in both Houses.”  If we had that provision, EPA’s arrogant trampling of state authorities would not happen. But it has, and it’s time to haul them into Court and hit the reset button.