One of the more interesting challenges to the National Pollutant Discharge Elimination System was thrown out recently by the Ninth Circuit Court of Appeals. Common protests have held that the costs of complying with the NPDES Phase II rule are more than the water-quality benefits are worth; others have objected to specific aspects of how permitting is handled. This one took a more sweeping view by claiming the Phase II rule is unconstitutional, violating two separate amendments.

The court's decision actually consolidated three separate cases in which petitioners had challenged Phase II on more than 20 separate constitutional, statutory, and procedural grounds. In one of these original cases, the Texas Cities Coalition of Stormwater and the Texas Counties Storm Water Coalition argued that, by requiring municipalities to regulate their own citizens, USEPA violates the Tenth Amendment ("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"). The requirements to reduce runoff from construction sites and to eliminate illicit discharges excessively interfere with the functions of local government, the Texas groups maintained, and compel operators of small MS4s, as a condition of getting a permit to operate, to regulate third parties who are discharging pollutants upstream—essentially "federal commandeering" of local authority.

In rejecting this argument, the court made the distinction that although the federal government cannot coerce a state to regulate, it can encourage certain types of regulations by a variety of means, including attempting to influence state policy by placing conditions on the state's receipt of related federal funding. The court also concluded that states have alternatives. One is "the option of not discharging" runoff to federal waters, by employing (likely more expensive) methods like recycling or wetland construction. Another is an alternative permit option whereby operators of small MS4s could seek permission to discharge based on the permitting program already established for medium and large MS4s under Phase I. (The full court ruling with a detailed discussion of the issues is available at www.ca9.uscourts.gov/ca9/newopinions.nsf, opinion 00-70014.)

The more interesting question the Texas groups raised, though, was whether the Phase II rule—specifically, the "public education and outreach" minimum control measure—violates the First Amendment by forcing municipalities to deliver a political ideology. Is telling the public that dumping used motor oil down a storm drain harms receiving waters a statement of scientific fact, or is it essentially a political message?

The challengers argue that the protection of free speech bars EPA "from compelling small MS4s to communicate messages they might not otherwise wish to deliver." In the event, the court found that a requirement to educate the public about the effects of stormwater runoff and improper waste disposal is not the same as dictating a specific message and that, in fact, the municipalities could meet this minimum control measure through "activities that need not include any specific speech at all." Informing the public about stormwater and safe disposal of materials is not ideological, the court stated, is not the "compelled recitation of a message," and requires no "affirmation of belief." The court further found that enforcing the Phase II regulations does not compel MS4 operators to endorse political or ideological views.

In the broadest sense, it's good that someone occasionally makes such a challenge. In areas where the data are not so compelling or where cause-and-effect is not well established, compelling a local government, or agency, or person, to enforce a measure or adopt a stance, however benign or seemingly for the common good, is an extremely dangerous precedent. "Who could possibly argue against _____ (clean water, safer streets, or whatever the issue)?" is not a sufficient argument. Returning to basic principles and reevaluating some of the laws that, to those caught up in them day to day, seem obvious and irrefutable is not, as some have complained, simply a waste of the courts' time (and the public's funding and patience) but a safeguard to keep out the frivolous and inappropriate and therefore to strengthen the remaining rules that are, in fact, important.

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SW - May/June 2003