The Obama administration and environmental groups want the Supreme Court to rebuff a legal challenge to the Chesapeake Bay “pollution diet,” arguing that lower courts have properly backed federal regulators in setting cleanup goals for the six states in the Bay watershed.
The Department of Justice and the Chesapeake Bay Foundation, in league with several other activist organizations, filed briefs Tuesday urging the nation’s highest court not to review the Environmental Protection Agency’s authority to impose a “total maximum daily load” on Bay states’ pollution of North America’s largest estuary.
The filings came in response to petitions filed late last year by the American Farm Bureau Federation, 22 states and a bevy of business groups, challenging the EPA's role in the multi-jurisdictional Bay cleanup. They contend that the EPA has overstepped its legal authority in ordering curbs on polluted runoff, and that the cleanup plan will impose tens of billions of dollars in costs on local communities, causing economic harm. The farm bureau and its allies argue that Supreme Court action is needed to rein in a “power grab” by EPA that they contend could harm farmers, businesses and communities throughout the six-state watershed.
The challengers assert that the EPA has usurped the role of the states in ordering pollution reductions across the bay watershed, including from farms and urban areas, and by threatening to take “contingency actions” if the states don’t take the necessary actions by the deadlines federal regulators set. The lower court decisions upholding the bay TMDL conflict with other courts’ decisions that have limited EPA’s power to dictate pollution reductions, they add.
The government and environmental group lawyers counter that the Bay cleanup plan –the largest and most complex ever drawn up under the federal Clean Water Act – had been developed with the consent and cooperation of the states tasked with carrying it out.
The government and environmental groups argied that there’s no grounds for the Supreme Court to review the bay TMDL, and that the lower courts did not misread the law. EPA is authorized to set “total maximum daily loads” on pollutants when states fail to take the steps needed to improve water quality, they argue. After 25 years of mostly voluntary cleanup efforts by the states, the bay remained impaired by nitrogen, phosphorus and sediment.
While the Clean Water Act only authorizes direct federal regulation of “point sources” of pollution such as wastewater treatment plants and factories, the EPA can order reductions in polluted runoff, the government and groups contend. It was left up to the bay states and the District to figure out how to meet those limits, they note.
EPA's plan calls for curbing three pollutants- nitrogen, phosphorus and sediment - responsible for impairing the bay's water quality. Under the TMDL, Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia have until 2025 to put in place pollution control measures sufficient to reduce nitrogen by 25 percent, phosphorus by 24 percent and sediment by 20 percent. The states and the District have drawn up plans spelling out how they would reach those targets, including upgrades of wastewater treatment plants, retrofits of storm-water infrastructure in developed areas and regulation or voluntary incentives of runoff from farmland.
The legal jockeying comes five years after EPA finalized pollution reduction targets for the Bay in December 2010, following more than 20 years of missed cleanup goals by the states. But the American Farm Bureau Federation promptly filed suit, joined by other agricultural groups and by the National Association of Home Builders.
Opponents argued that states, rather than the federal government, had the exclusive power to set pollution cleanup plans, particularly in seeking to curb runoff from farms and developed land. Though EPA has insisted it has no plans to extend the same approach elsewhere, opponents have warned that if unchecked, the federal government could impose similar pollution “diets” in other watersheds, notably the sprawling Mississippi River drainage..
Federal courts have yet to find merit in the opposition. After a hearing in Harrisburg, U.S. District Court Judge Sylvia Rambo firmly upheld the EPA’s actions, calling the Bay cleanup plan a model of cooperative federalism. The 3rd Circuit Court of Appeals last year concurred with the lower court’s ruling, calling opponents’ arguments “unpersuasive.”
In their brief, Justice Department lawyers noted that the Bay cleanup plan was based on regulations the EPA had issued in 1985, which Congress has never revoked. Those rules have been used since to approve 70,000 pollution limits set by states and 7,000 others drawn up by EPA itself, the government lawyers note. The Chesapeake case is unprecedented, though, in that pollution reductions have been mandated in a watershed that spans several state boundaries.
Bay Foundation President William C. Baker said he hoped the Supreme Court would refuse to review the Bay cleanup plan.
“None of the Bay states or the District of Columbia have joined the Farm Bureau and its allies,” Baker said. “That should send a strong message,” he added, “that there has been no over-reach by EPA.”
Baker and others contend that the "Chesapeake Clean Water Blueprint,” the foundation’s name for the TMDL and associated pollution abatement plans, represents the best hope for restoring the Bay to its former ecological vitality. While opponents say cleanup will be exorbitantly costly, the government and environmentalists counter that restoration will produce monetary gains. The Bay, with natural assets estimated to be worth $1 trillion now, could see a $22 billion improvement if cleanup goals are met, according to an economic analysis done for the Bay foundation.
Jane Davenport, senior staff attorney at Defenders of Wildlife, one of the groups joining in the Bay Foundation brief, said the EPA-imposed cleanup plan “will protect the waters and wildlife of the Bay and help restore the incredible economic and recreational benefits that a clean, healthy Bay will provide for our region.”
Joining the bay foundation in the filing were Citizens for Pennsylvania’s Future, Defenders of Wildlife, the Southern Environmental Law Center, the Midshore Riverkeeper, and the National Wildlife Federation.
The Supreme Court will decide later this year if the case raises sufficient constitutional questions to warrant its review. The court only agrees to hear some of the lower court decisions it's asked to review. Generally, the justices choose cases that they believe pose important questions about the powers of the federal government or that might resolve conflicting rulings by different courts. If the justices do agree to hear the case, it would likely be argued in the high court's next session beginning in the fall.
Tim Junkin, founder and advisor of the Mid-Shore Riverkeeper Conservancy, is among those hoping the court will turn the legal challenge aside. He said he sees evidence now that local governments and communities on the Eastern Shore of Maryland are getting behind the Bay cleanup. They are “spending money and putting projects in the ground,” he said.
“I attribute much of this to the Clean Water Blueprint that the states and EPA agreed to,” Junkin added. “It would be a catastrophe if a few special interests derailed this momentum.”