WHO REGULATES THE REGULATORS?

Administrative agencies, primarily the federal ones often identified by an alphabet soup of letters, appear to regulate every aspect of our personal and commercial lives. USEPA--the United States Environmental Protection Agency as it more formally is known--is but one small example of an administrative agency.

But exactly what is a federal administrative agency? It is not one of the Constitutional three branches of our federal government. It is like a fourth branch of government, yet most agencies have attributes of all three branches: the legislative branch, by reason of rulemaking authority; the judicial branch, by reason of hearing, cease and desist and penalty authority; and the executive branch, by reason of permitting and authority. Administrative agencies such as USEPA can exercise all three kinds of functions, and do so.

Who regulates administrative agencies to assure that they do not exceed their authority? In theory, these agencies are creatures of the legislature. In effect, Congress has delegated a portion of its authority to federal agencies by means of statutes. Therefore, a primary measure of the propriety of an agency action is whether the agency has exceeded its statutory authority. Whether an agency has failed this test is to be determined by the courts.

A good example occurred in January when a federal District Court held that USEPA exceeded its statutory authority when it attempted to regulate the flow of stormwater into a Virginia watershed. Under the Clean Water Act, USEPA sought to establish the total maximum daily load ("TDML") of sediment "pollution" entering a creek by regulating storm water flow into the creek, not the actual sediment. Sediment was the primary cause of impaired water quality in the creek. However,, USEPA sought to regulate stormwater flow, a non-pollutant, as a surrogate for sediment. As the court put it, "Does the Clean Water Act authorize the EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek?"

The court held that the Clean Water Act did not authorize EPA to regulate nonpollutants or to use nonpollutants as a surrogate for regulation of pollutants, saying that in the in establishment of TDMLs, "EPA may not regulate something over which it has not statutorily granted power..." THe court concluded, "Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore reguable, does not bring stormwater within the ambit of EPA's TMDL authority. Whatever the reason EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority." (Virginia Department of Transportation v. United States Environmental Protection Agency, U.S. District Court, Eastern Division of Va., No. 1:12-CV-775, January 3, 2013)

Yeas ago, Justice Cardozo one referred to the tendency of a principle to extend to the limits of its logic. When an administrative agency extends beyond the limits of its statute, its authority falls off the judicial cliff.