Anchorage, Alaska is more than 4,000 miles away from the Chesapeake Bay, yet Alaska joined 20 other states on Monday in asking a federal appeals court to overturn the EPA-led plan to restore the Bay, known as a Total Maximum Daily Load (TMDL).
While Alaska’s interest in the Bay-wide TMDL is murky, the history of the lawsuit is straightforward. In 2009, the Obama administration issued Executive Order 13,508, directing EPA to take a leadership role in cleaning up the Bay. The Bay-wide TMDL, often referred to as a “pollution diet,” followed in 2010. It imposed strict limits on the quantities of nitrogen, phosphorus, and sediment that could be discharged into the Bay and allocated the total permissible amount of each pollutant among the Bay states and the District of Columbia, leaving it up to the states to determine how to meet the specific allocations. In 2011, the American Farm Bureau Federation and Pennsylvania Farm Bureau sued EPA claiming that the agency did not have the authority under the Clean Water Act (CWA) to issue the TMDL. In a decision this past September, U.S. District Court Judge Sylvia Rambo disagreed. The Farm Bureau immediately signaled its intent to appeal to the Third Circuit and filed its brief with the court last week. The states filed their amicus brief Monday in support of the Farm Bureau.
The district court’s decision to uphold the TMDL rested in large part on the plan’s demonstrated commitment to cooperative federalism. The judge dedicated nearly 20 pages of her 99-page opinion to reviewing the history of the Bay preservation efforts, which have spanned more than 30 years, been the subject of considerable litigation, and yielded numerous consent decrees, settlement agreements, and MOUs. This history reveals consistent communication and cooperation between EPA and the states. Indeed, the Bay states asked EPA to set pollution levels for the entire watershed in 2007 and, as the court emphasized, “no state has filed suit challenging the TMDL.”
At the time, Judge Rambo was right—no state had challenged the Bay-wide TMDL. Importantly, of the 21 states that filed Monday’s amicus brief, only one—West Virginia—lies within the Chesapeake Bay watershed. The rest of the states—Kansas, Indiana, Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming—aren’t even close.
So what’s going on? The challenge is a partly a result of the TMDL’s success. The Bay has a long way to go before it’s restored, but, after decades of failed agreements, the six Bay states and D.C. are working cooperatively with EPA and the Bay is improving as a result. This scares the farm lobby. Most of the states joining in the brief are in the Mississippi River watershed. The farm lobby is worried that similar efforts may be made to force nutrient reductions from Midwest farms.
Kansas Attorney General Derek Schmidt, who filed the brief, essentially said as much. The brief accuses EPA of “micromanag[ing]” sources of pollution that have traditionally been “beyond EPA’s reach” (read: agriculture). “We would prefer to get th[e] answer [to whether EPA is overreaching] while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin,” he said in a press release.
This latest attack is one more prong in the farm lobby’s concerted and longstanding effort to escape regulation under the CWA. Despite being a major contributor to water pollution—agriculture is responsible for half of the pollution entering the Chesapeake Bay, for example—the industry has largely escaped regulation and is fighting to hold onto this privileged position. Through the American Farm Bureau Federation, its powerful and well-funded trade association, the farm lobby has used every available tool to avoid regulation under the CWA. It has challenged every new EPA CAFO rule; it has staged public relations campaigns that claim to be grassroots efforts mounted by farmers; and it has bankrolled efforts to shrink the CWA’s application to industrial animal farms.
The district court got it right: the TMDL is squarely within EPA’s authority. That the Farm Bureau continues to fight is unfortunate but unsurprising. That the farm bureau has recruited the states is just wrong.