High court should ignore challenge to Bay pollution plan, feds say

WASHINGTON, Feb. 3, 2016 - There is no good reason for the Supreme Court to review – and possibly reverse – an appeals court decision that upheld an ambitious plan to restore the Chesapeake Bay to health.

That was the message from the federal government, environmental groups and the Pennsylvania Municipal Authorities Association, who are opposing a petition seeking to scuttle EPA’s Total Maximum Daily Load (TMDL) program to limit pollutants in the nation’s largest estuary.

However, twenty-two states and nearly 100 members of Congress – all but one a Republican -- are supporting a petition filed by an octet of farm groups and the National Association of Home Builders (NAHB), all of whom would like to see the court clip EPA’s regulatory wings before an important part of America’s farm country becomes subject to an even bigger TMDL.

The farm groups asking the Supreme Court to agree to review the Third Circuit Court of Appeals decision are the American Farm Bureau Federation, the National Chicken Council, National Corn Growers Association, National Pork Producers Council, National Turkey Federation, Pennsylvania Farm Bureau, The Fertilizer Institute, and U.S. Poultry and Egg Association.

The court is scheduled to take up the petition at its Feb. 26 conference. Decisions are usually announced the following Monday, which this year would be Feb. 29.

The Office of the Solicitor General and the Chesapeake Bay Foundation (CBF) argued that the Third Circuit case is a particularly bad one to use to challenge the legality of the TMDL program. Far from being a top-down, command-and-control program, the Bay’s Total Maximum Daily Load (TMDL) is a model of cooperative federalism, the petition opponents said in their responses filed last month with the Supreme Court.

“Because the gravamen of petitioners’ argument is that the TMDL usurps the authority of the states, the fact that no affected state agrees with petitioners is sufficient to warrant denial of the petition,” the environmental groups said.

The government noted “none of the states that are covered by the Bay TMDL has supported petitioners’ challenge. Rather, all of those states are moving ahead with implementation plans under the TMDL as part of the partnership that they willingly joined in order to solve a common problem.” The Chesapeake Bay watershed includes parts of New York, Pennsylvania, West Virginia, Virginia, Delaware, Maryland and Washington, D.C.

“Petitioners argue that the TMDL ‘opens the door for a dramatic expansion of federal power over land use and water quality planning nationwide,’” CBF and the other environmental groups noted. “To the contrary . . . the TMDL is the product of a unique and cooperative federal-state relationship that produced a plan for cleaning up a particular body of water – the Chesapeake Bay. That cooperative federal-state relationship may or may not be repeated in other segments of the country.”

Not just that, but the Bay TMDL is also the product of a unique legislative history, CBF said. “EPA’s obligation to develop the Bay TMDL is supported by specific statutory authority, interstate agreements, judicial orders, and (memorandums of understanding). Those case-specific factors make this an unsuitable vehicle to consider the analysis under CWA Section 303(d) alone – the crux of the petition.”

There is no conflict between or among circuit courts of appeals, the petition opponents said.

“Contrary to petitioners’ argument, there is no conflict between the decision below and the decision of any other court of appeals,” the government said. “Since EPA promulgated its (TMDL) regulatory definition . . . in 1985, it has approved more than 70,000 state-submitted TMDLs and established more than 7,000 TMDLs under its own authority. Petitioners cite no decision, and we are aware of none, in which a court has struck down any of those TMDLs on the ground that the (Clean Water) Act precludes the use of load and wasteload allocations, or the use of ‘reasonable assurances,’ or the use of an anticipated timeline for state implementation.”

The Third Circuit said EPA could require “reasonable assurances” that the states would actually meet the targets in their Watershed Improvement Plans.

“The court explained that such a provision ‘does not require the states to undertake any particular implementation effort,’ but is simply ‘an attempt by EPA to clarify the basis upon which the proposed allocations are judged’,” the government said.

The TMDL “does not impose any binding implementation requirements on the states,” the federal government said. “It discusses the (Chesapeake) Bay Partnership’s target dates and milestones for measuring implementation progress, as well as the states’ assurances about what headway they would make in reducing pollution, but the TMDL itself imposes no consequences for missing those milestones. Instead, if that circumstance arises, EPA may consider whether to exercise authority conferred by other CWA provisions, separate from its TMDL authority, to take additional measures.”

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