The American Farm Bureau Federation and other industry groups on Friday formally requested the U.S. Supreme Court to review the legality of the Chesapeake Bay cleanup plan which it called a “federally driven scheme” which threatens authority of states across the nation.
As they previously argued before the Middle District Court of Pennsylvania and the 3rd U.S. Circuit Court of Appeals, the groups contend that the EPA overstepped its authority when it established the Chesapeake Bay Total Maximum Daily Load in December 2010.
The TMDL set limits on the amount of water-fouling nitrogen, phosphorus and sediment that can enter the Bay, a 2025 deadline for achieving those limits, and required states to develop implementation plans showing how those goals would be achieved.
EPA’s authority to issue the TMDL was upheld by district court Judge Sylvia Rambo in 2013, and by a unanimous ruling by a three-judge panel in the 3rd Circuit in July, the latter of which had called Farm Bureau’s arguments “long on swagger but short on specificity.”
It its Supreme Court filing, Farm Bureau and its allies, which include the National Association of Home Builders and a variety of agricultural trade groups, contend the lower courts misinterpreted the EPA’s authority regarding TMDLs under the Clean Water Act and warned the agency had established a model “that is expressly designed to be used in other watersheds” and therefore opened the door “for a dramatic expansion of federal power over land use and water quality planning nationwide.”
Specifically, the groups contend the EPA overreached because the TMDL not only established the total amount of nitrogen, phosphorus and sediment which can enter the Bay, but also set limits on the amount of those pollutants that could come from various geographic areas and sources.
Those allocations, the federation contends, effectively dictate how land can be used — something the Clean Water Act leaves to the states.
“As a practical matter, the power to set numeric limits for sediment and nutrients by source type within specified geographic areas equals nothing short of the power to allow farming here, but not there; building here, but not there,” the federation argued. “…Land use decisions are the prerogative of States and their subdivisions.”
The petition argues that the EPA also overstepped its authority by requiring states to write detailed implementation plans showing how they would achieve cleanup goals.
While those arguments had been rejected in previous rulings, the Farm Bureau’s petition contends the lower courts erred in their decisions, and had granted the EPA too much discretion in interpreting its authority under the Clean Water Act.
“This is nothing less than federal super-zoning authority,” AFBF President Bob Stallmen said. “As much as we all support the goal of achieving a healthy Chesapeake Bay, we have to fight this particular process for getting there.”
Chesapeake Bay Foundation President Will Baker, one of several organizations that have sided with the EPA in the case, countered that the agriculture and development trade groups should support the cleanup plan as the “best hope” for restoring the health of the Chesapeake and its tributaries.
“Their continued reluctance in the face of overwhelming public support stands in stark contrast to the efforts of thousands of farmers and homeowners who have taken action, many at their own expense, to move the Bay cleanup effort forward,” Baker said.
A cleaner Bay would produce $22 billion in annual economic benefits to the region, he said, citing an earlier CBF study.
The federation had earlier indicated that it planned to appeal the case. The EPA and its allies have 30 days to respond, though the EPA can seek an extension. 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 75–80.
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.