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Va. Attorney General Cuccinelli had Democratic allies in a win against EPA

- The Washington Times - Sunday, January 6, 2013

A recent ruling against the Environmental Protection Agency has given Virginia Attorney General Kenneth T. Cuccinelli II his first clear-cut victory in the conservative's much-publicized skirmishes with the federal government.

A federal judge recently ruled the EPA overstepped its bounds in trying to regulate stormwater in a Northern Virginia watershed — a ruling Mr. Cuccinelli says could save the state and Fairfax County upward of $300 million.

"It was not a partisan undertaking," said Mr. Cuccinelli, a Republican who is running for governor this year. "This really would have allowed them to take a club to our economy."

U.S. District Judge Liam O'Grady wrote in a nine-page opinion issued last week that water cannot be considered a "pollutant" under the Clean Water Act and was not subject to the federal regulation.

Perhaps as intriguing as the ruling is the fact that the Democrat-controlled Fairfax County Board of Supervisors was a co-plaintiff in the case along with Mr. Cuccinelli's client, the Virginia Department of Transportation.

Board Chairwoman Sharon Bulova said she was pleased with the ruling and that the board will continue its strong track record of environmental stewardship while using county dollars wisely.

"State and County environmental regulations and policies are very much intertwined," she said in a statement. "The partnership between the Commonwealth and Fairfax County was important to our success in this challenge."

Unlike his other cases against the federal health care overhaul or the EPA's authority to regulate greenhouse gases, Mr. Cuccinelli had a local partner in this instance. He acknowledged that the outcomes have been mixed but didn't indicate he was about to pull any punches against Washington.

"We certainly fought back, and we're sort of 1-1-1," he said. "We've had mixed results. [It's] well worth undertaking the fights. We've knocked back their attempts to impose themselves into our own local government."

The loss Mr. Cuccinelli alluded to came when a D.C. appellate panel ruled in June that the EPA does have the authority to regulate greenhouse gases, dismissing a lawsuit brought by scores of plaintiffs that included the state of Virginia. The court recently denied a request to rehear the case en banc, or before the full court.

Though Mr. Cuccinelli's health care lawsuit ultimately was not heard by the U.S. Supreme Court, he filed the suit literally seconds after President Obama signed the bill into law in March 2010 and the attorney general fast became a national face of the opposition to the law. He judged the final Supreme Court ruling a tie: the law was upheld as constitutional, but states will not be required to comply with its Medicaid expansion provision. Since the court judged the law constitutional under Congress' taxing power, Mr. Cuccinelli said it was a major win for federalism as well.

"Never again will someone in Congress be able to say, 'Well, this isn't a tax,'" he said. "That will never, ever be forgotten in the history of the United States."

For his part, Mr. Cuccinelli has an extensive resume of accomplishments on issues within the commonwealth, such as combating Medicaid fraud, protecting the state's elderly population from scams and working to exonerate the wrongly accused.

But he's better known for more controversial endeavors such as the health care fight, his pursuit of records related to a climatologist who worked at the University of Virginia and his advice that led the state Board of Health to reverse a previous vote and require existing abortion clinics in the state to comply with hospitallike regulations.

It behooves him to put points on the board that resonate with a segment of the population beyond his conservative base, said Mark Rozell, a professor of public policy at George Mason University.

"A win is a win — it gives him some credibility," he said. "Here, he's keeping it home and keeping it local and pointing to something good he's done that impacted people in a tangible way back home."

Mr. Cuccinelli also pointed out in a recent email to supporters that while he's been involved in many "federalism fights" during his time as attorney general, this was the first time where federal, state and local parties were all involved in the same lawsuit.

Virginians who were surprised that Mr. Cuccinelli almost instantly entered the fray after being elected in 2009 really shouldn't have been; he openly campaigned on fighting what he describes as an overzealous, overreaching federal government. The key, Mr. Rozell said, is being able to articulate the value in that effort.

"I think what he has to do," he said, "is convey that he's taken on the federal government time and again, which many other attorneys general perhaps have been reluctant to do: 'This is merely one victory, but it's an important one, given the odds against going up against the big and powerful federal government.'"

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