More than 90 members of Congress, along with 22 states and several business trade groups, have asked the U.S. Supreme Court to take up the American Farm Bureau Federation’s challenge to the Chesapeake Bay cleanup plan.
A similar coalition had supported the Farm Bureau when it took its case to the 3rd U.S. Circuit Court of Appeals, contending that the EPA exceeded its legal authority in establishing the Bay cleanup plan in December 2010, and that it could lead to the agency creating similar pollution reduction plans in other areas.
So far, all four federal judges who have heard the case — a district court judge and three on the appeals court panel — have rejected that argument. But the Farm Bureau on Nov. 6 filed papers asking the Supreme Court to review the case.
The Chesapeake Bay Total Maximum Daily Load, which was developed over several years by the EPA and states within the watershed, set limits on the amount of nitrogen, phosphorus and sediment that could enter the Bay. Those limits were then subdivided among states, river basins and different sources of pollution.
The Farm Bureau contends that setting limits on different sources of pollution, such as urban runoff, wastewater treatment plans and stormwater, in effect regulates land use — authority for which rests with the states.
That argument was rejected in lower courts, but the petition filed with the Supreme Court by the Farm Bureau and several agricultural organizations maintains that if allowed to stand, the Bay TMDL would open the door “for a dramatic expansion of federal power over land use and water quality planning nationwide.”
Attorneys general from 22 states — none in the Bay watershed — agreed. “By embracing EPA’s expansive interpretation of its authority the Third Circuit allowed EPA to replace States as the ultimate land-use regulators, upending the balance between federal and state authority without any clear congressional authorization as the court requires,” they said in their Friend of the Court brief filed Dec. 9.
A brief filed the same day by 92 Republican members of Congress — including 14 from Bay watershed states — argued that the EPA’s interpretation of its authority under the vaguely worded section of the Clean Water Act that deals with TMDLs exceeded what Congress intended when writing the law.
The law, they said, only allows the EPA to establish a “total” maximum limit on pollution — not subdivide that allocation among different sources. “This is a breathtaking expansion of EPA’s authority at the expense of the States,” the lawmakers said.
A third brief from the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Small Businesses Legal Center, echoed those arguments. “If the TMDL stands, EPA would have a green light to exercise significant power over land use decisions affecting local businesses throughout the nation,” they told the court.
Farm Bureau President Bob Stallman praised the briefs supporting the group’s position. “The fact that so many voices are being raised in support of Supreme Court review shows the broad and severe threat that EPA’s action here poses nationwide,” he said. “EPA has asserted powers that do not appear in any law written by Congress, and it has done so in the context of an iconic national treasure, hoping that will inoculate its power grab in the courts.”
Chesapeake Bay Foundation President William Baker, whose organization has sided with the EPA in court, said the states filing a brief siding with the Farm Bureau were taking a position that was at odds with the states in the Bay watershed.
“Remember, the states asked EPA to set the pollution limits to help restore water quality in local rivers, streams, and the Bay,” he said. “This request came after decades of failed, voluntary agreements to do so.”
Baker added that, “We believe that the Supreme Court will reaffirm the significant factual and legal support for Bay restoration established by the lower courts.”
The states represented by the attorneys general filling the brief include Kansas, Indiana, Missouri, Alabama, Arizona, Arkansas, Colorado, Georgia, Kentucky, Michigan, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming.
Members of Congress from the Bay watershed signing onto the brief include Sen. Pat Toomey of Pennsylvania; Reps. Randy Forbes, Bob Goodlatte, Robert Hurt and Morgan Griffith of Virginia; Rep. Andy Harris of Maryland; Reps. Mike Kelly, Thomas Marino, Scott Perry, Keith Rothfus, Bill Shuster and GT Thompson of Pennsylvania; and Reps. David McKinley and Alex Mooney of West Virginia.
The court would likely decide whether to take up the case in late winter or early spring. The Supreme Court gets about 10,000 petitions to hear cases each year. It typically accepts only 75 to 80.