Farm Bureau to seek Supreme Court review of Bay TMDL decision
Extension for appeal sought; lawyers hired
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The American Farm Bureau Federation has asked the U.S. Supreme Court for an extension in the normal time to file an appeal, a strong indication that it intends to take its legal challenge of the Chesapeake Bay cleanup plan to the U.S. Supreme Court.
A three-judge panel of the 3rd U.S. Circuit Court of Appeal in July unanimously rejected arguments by the Farm Bureau and allied organizations that the EPA had overstepped its authority in issuing the Chesapeake Bay Total Maximum Daily Load in December 2010.
The court was sharply critical of the Farm Bureau’s case, calling various arguments “illogical,” “unpersuasive” and, in one case, “long on swagger but short on specificity.” At the same time, it said the TMDL “is reasonable and reflects a legitimate policy choice.”
On Sept. 17, the Farm Bureau signaled its intent to appeal by filing papers asking that the deadline for filing a petition to hear their appeal be extended from Oct. 5 to Nov. 6.
“The stakes are enormous,” it said in the application, saying that the 3rd Circuit’s approval of the TMDL would result in “burdensome regulations which touch virtually all ‘incidents of daily life’ within the watershed.”
Besides the 3rd Circuit, the Farm Bureau’s case was initially rejected by a U.S. District Court judge in Harrisburg.
“We are disappointed, but not surprised, that the Farm Bureau and its allies continue to challenge the plan to restore water quality in local rivers, streams and the Chesapeake Bay,” said Chesapeake Bay Foundation President Will Baker.
“Despite strong and well-reasoned decisions by the two lower courts, this filing shows the Farm Bureau’s determination to undermine efforts of six states and the District of Columbia to finally restore this national treasure,” said Baker, whose organization has defended the TMDL in court along with the EPA.”
The Chesapeake Bay TMDL established an enforceable program to reduce the amount of water-fouling nitrogen, phosphorus and sediment that reaches the Bay from each state in the watershed.
The Farm Bureau, along with the National Association of Home Builders and several agricultural trade groups has expressed concern that, if it stands, the TMDL could set a precedent for other parts of the country.
The Supreme Court gets about 10,000 petitions to hear cases each year. It typically accepts only 75–80.
The Farm Bureau’s documents show it is engaging two attorneys with extensive experience in dealing with the Supreme Court to make its argument.
Michael B. Kimberly, one of the attorneys, has been called “extraordinarily adept at getting cases before the Supreme Court,” according to the Reuters news service.
Tim Bishop, the other, has argued five cases before the court, including a successful 2001 challenge to federal wetland regulations, Solid Waste Agency of Northern Cook County v Army Corps of Engineers.
Bishop is a partner and Kimberly is an associate with the law firm of Mayer-Brown.
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