When Wyoming rancher Andy Johnson decided to create a stock pond for horses and cattle on his 8-acre property, he did what any conscientious landowner would do. He got permits from both the state and local government before moving any dirt.
What he didn’t count on was a power-mad Environmental Protection Agency, which in January 2014 said Johnson’s pond violated the Clean Water Act — even though the CWA exempts stock ponds — told him to get rid of it, and threatened him with a $37,500 fine for every day he delayed.
Rather than cave to federal thuggery, Johnson refused the order, and then sued the EPA with the help of the invaluable Pacific Legal Foundation. Environmental experts he commissioned said the pond was exempt, and served as a habitat for migratory birds, fish and wildlife.
More than two years later, Johnson won. In a settlement reached with the EPA, he gets to keep his pond, he won’t need to get a federal permit, the EPA fines have been removed, and all Johnson agreed to do was plant some willow trees and limit access to a portion of his pond for a while.
Pacific Legal Foundation attorney Jonathan Wood called the settlement “a win for the Johnson family, and a win for the environment.”
But what kind of win is this? The federal government storms onto private property and threatens a family with massive fines, upends their lives for two years, and walks away only after being countersued.
A real win would be if the EPA were banned from engaging in such tactics. Instead, the EPA gets away with almost anything because it’s always in the name of the environment. And it is endlessly testing the limits of its power.
Indeed, while the EPA was harassing Johnson over his pond, it was finalizing a new rule that would vastly expand its jurisdiction under the Clean Water Act to cover, as Sen. John Barrasso, R-Wyo., put it, “everything from prairie puddles to power plants.”
That plan thankfully came to a halt when a federal judge in North Dakota, responding to a lawsuit filed by several states, blocked the EPA from enforcing the rule, which the judge said was “arbitrary and capricious” and would cover water that was “remote and intermittent.”
Despite the judge’s ruling that the injunction be applied to all 50 states, the EPA decided it would go ahead and enforce its new water rule in the states that hadn’t sued, until an appeals court stepped in and blocked it from doing that.
This is but one of several times the courts have slapped back the EPA for overreaching its authority under the Obama administration.
But if others are to be protected from EPA abuse, it will take more than an intermittent favorable court ruling. Congress will have to rein in the EPA’s power.
As it stands, the EPA is proof of Lord Acton’s observation, made almost 130 years ago, that “power tends to corrupt, and absolute power corrupts absolutely.”