Thirty-nine members of Congress last week sought to join agricultural and homebuilder groups in their legal challenge to the Bay cleanup plan, saying the EPA went “far beyond” its authority when it set limits on Bay pollution and required states to develop plans showing how they would meet those limits.
The group, which includes 11 members from the Bay watershed, contend that the Chesapeake Bay Total Maximum Daily Load, if allowed to stand, would “usurp…traditional state authority over economic development and land use management decisions.”
The EPA’s authority to issue the Bay TMDL was upheld last September by Federal District Judge Sylvia Rambo, but the American Farm Bureau Federation, the National Association of Homebuilders and several agricultural trade groups are appealing that decision to the Third Circuit Court of Appeals in Philadelphia, which is expected to hear arguments this summer.
They have been joined by a group of 21 attorneys general from around the nation who in February filed a friend of the court brief expressing concern that the Bay TMDL would set a precedent for other waterbodies, including the Mississippi River basin.
On the other side, a number of environmental groups have taken the EPA’s side, along with the states of Virginia, Maryland and Delaware, the District of Columbia, and several major cities including New York and Los Angeles, among others.
In their friend-of-the-court brief, the lawmakers called Rambo’s decision “flawed” and — like other critics of the TMDL — contend that the EPA overstepped the authority Congress gave the agency in the Clean Water Act. They argue that the EPA is limited to establishing the “total maximum daily load” of a pollutant that a waterbody can receive. They argue the EPA exceeded its authority in issuing the Bay TMDL because it went beyond setting just a “total” load, and also set limits for each pollution sector, such as wastewater treatment plants, agriculture and stormwater. Those sector allocations, they argue, violate the law because they could limit development and agriculture, thereby infringing on a state’s right to make land use decisions.
Further, they said the EPA did not have the authority to compel states to write detailed cleanup plans showing how they would achieve those pollution reductions, or to set cleanup deadlines.
The lawmakers said they were representing constituents who faced an “enormous burden” from the TMDL which “unduly restricts state and local land use authority and economic freedom by locking in federally mandated allocations instead of allowing the affected states the flexibility to adopt and adapt their own restoration plans.”
Rambo rejected similar arguments in her ruling last September. Rather than being an example of overreach by a federal agency, she said the EPA had played a “critical” role in working with states over a period of years to develop a pollution-reduction strategy that encompassed the Bay’s entire 64,000-square-mile watershed. She called the TMDL was an example of “cooperative federalism” between the states and the EPA.
But the lawmakers argume that Rambo used a flawed interpretation of an earlier court ruling to allow an “undue expansion of regulatory power” by the EPA simply because the law was ambiguous about the exact extent of the agency’s authority. “If the district court’s analysis is affirmed, agencies will easily be able to find ambiguities in nearly every statute,” the lawmakers contended, allowing agencies to “seize virtually limitless power.”
Rep. Bob Goodlatte, R-VA, chair of the House Judiciary Committee and a longstanding critic of the TMDL, said lawmakers filed the brief because “the EPA has violated the law and infringed upon states’ rights.”
“I urge the court to follow congressional intent and reserve these decisions for the states. The EPA does not have the legal authority to micromanage states’ water quality goals.”
U.S. Sen. Pat Toomey, R-PA, said, ”this is yet another clear example of the EPA trampling state law and imposing a costly mandate on Pennsylvania farmers. Pennsylvania farmers and lawmakers have a terrific partnership that has played a huge part in cleaning up the Chesapeake Bay over the past 30 years.”
Chesapeake Bay Foundation President William Baker, which has taken EPA’s side in the case, noted that last week Govs. Martin O’Malley of Maryland, Tom Corbett of Pennsylvania, Terry McAuliffe of Virginia and and Jack Markell of Delaware signed a new Bay Agreement in Annapolis committing to work together to clean up the Chesapeake.
“Arguing that Bay restoration efforts have ‘usurped’ states’ rights flies in the face of the realities of last week’s event,” said Baker, who noted that the brief was filed almost two months after a deadline set by the court.
“The brief was filed well past the deadlines imposed by the court, and CBF believes those deadlines should be respected.”
Besides Goodlatte and Toomey, lawmakers from the Bay states who joined in the brief included Pennsylvania Reps. Glenn Thompson, Scott Perry, Lou Barletta, Bill Shuster; Maryland Rep. Andy Harris; Virginia Reps. Morgan Griffith and Robert Hurt; West Virginia Rep. David McKinley; and New York Rep. Chris Collins. While all the lawmakers joining the brief from this region were Republicans, a few Democrats from other parts of the country also signed on.