The Plunder of Colfax
In the Sierra Foothills in northeastern California lies the little town of Colfax, population 1,800, with a median household income of about $35,000.
Over the past several years, this little town has been utterly plundered by regulatory and litigatory excesses that have pushed the town to the edge of bankruptcy and ravaged families already struggling to make ends meet.
Colfax operates a small wastewater treatment plant for its residents that discharges into the Smuthers Ravine. Because it does so, it operates within the provisions of the Clean Water Act, a measure adopted in 1972 and rooted in legitimate concerns to protect our vital water resources.
The problem is that predatory environmental law firms have discovered how to take unconscionable advantage of that law to reap windfall profits at the expense of working-class families like the townspeople of Colfax.
In the case of Colfax, an environmental law firm demanded every document pertaining to the water treatment plant from the date of its inception. It then poured over those documents looking for any possible violation – including mere paperwork errors. By law, those documents include self-monitoring reports by the water agency itself, and any violation, no matter how minor, establishes a cause of action for which the law provides for no affirmative defense – even if the violation is due to factors completely outside of the local community’s control, including acts of God or acts by unrelated and uncontrollable third parties.
Prove one such violation – and remember, the law allows for no affirmative defense – and you have just guaranteed the attorneys all of their fees, which in this case were billed at $550 per hour.
As a result of this predatory activity, the town of Colfax is facing legal fees alone that exceed the town’s entire annual budget. Families that are struggling just to keep afloat are fleeced by attorneys charging $550 per hour.
But that’s just part of the problem.
The law requires constant upgrading of the facilities to meet ever-changing state-of-the-art regulations that have nothing to do with health and safety and with absolutely no concern for their prohibitive costs. In fact, Colfax is now required to discharge water certifiably cleaner than the natural stream water into which it is discharged. In Colfax’s case, this required a $15 million expenditure divided among 1,800 working-class residents who are now paying $2,500 per year just for their water connections.
And once the town has met this standard, there’s no guarantee that in five years it won’t be told, “Sorry, the rules have changed and you’ll need to start over.”
It is time to restore some form of rationality back to this law, and to stop the plunder of small towns like Colfax. And Colfax isn’t alone – any community that operates a wastewater treatment plant is in the same jeopardy.
No one disputes that we need to maintain and enforce sensible and cost-effective protections of our precious water resources. But legitimate environmental protections must no longer be used as an excuse for regulatory extremism and litigatory plundering of our local communities.
Today, I am introducing legislation to offer six reforms to protect other communities from going through the same nightmare as the people of Colfax:
First, to limit private-party lawsuits to issues of significant non-compliance rather than harmless paperwork errors;
Second, to shield local agencies from liability for acts beyond their control;
Third, to give local agencies 60 days to cure a violation before legal action can be initiated;
Fourth, to allow communities to amortize the cost of new facilities over a period of 15 years before new requirements can be heaped on them;
Fifth, to require a cost-benefit analysis before new regulations can be imposed;
And sixth, to limit attorney fees to the prevailing fees in the community.
Like many movements, the impetus for stronger environmental protection of our air and water was firmly rooted in legitimate concerns to protect these vital resources. But like many movements, as it succeeded in its legitimate ends, it also attracted a self-interested constituency that has driven far past the borders of commonsense and into the realms of political extremism and outright plunder and I am hopeful that we are now entering an era when common sense can be restored to the Clean Water Act in this session of the Congress.
Congressman Tom McClintock, House Chamber Remarks, Washington, D.C.
December 1, 2011.