Today, the Third Circuit will hear arguments in a case to determine whether the Environmental Protection Agency (EPA) overstepped its authority when it established a pollution diet for the Chesapeake Bay. After decades of failed attempts to clean up the Bay, the pollution diet imposes strong, enforceable deadlines for cleanup. Even without distracting and misguided legal challenges from out-of-state lobbying groups, the restoration battle won’t be easy. The plan has been in place since 2010 and still the Bay experienced the eighth largest dead zone in its history this past summer.
The pollution diet, technically known as the “total maximum daily load” (TMDL), places a science-based cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the six watershed states and Washington, DC. The TMDL controls “point” sources of pollution—the end of a pipe, for example—as well as “nonpoint” sources, such as most agricultural runoff.
Today, the American Farm Bureau Federation and its supporters will make an argument that flies in the face of settled law. They will argue that by including sector-specific limits on pollution sources, the EPA infringed upon states’ rights to make local land-use decisions. According to the Farm Bureau, the TMDL impermissibly dictates whether:
[P]articular lands can be farmed or developed, and how; the amounts of fertilizer that may be applied to, or sediment that may be washed off from, particular farms, suburbs, land development projects, or city streets; and how to allocate the burdens of achieving water quality goals among municipal sewers, stormwater systems, septic systems, construction and development activities, farming, and other sources.
The EPA will counter that the Clean Water Act is ambiguous as to how exactly the agency should go about writing a TMDL. Given the ambiguity, the court should defer to the EPA’s approach, which was heavily informed by input from the states. States set water quality goals with input from the EPA and then developed proposals to meet those goals. These proposals guided the federal agency in establishing the overall interstate plan in the Bay TMDL. The Clean Water Act was set up to allow for exactly this type of cooperative federalism, and the EPA will argue that its approach in drafting the Bay TMDL was therefore entirely reasonable.
In its argument, the EPA is supported by ample Supreme Court case law, affirmed just this past April when the Court upheld the Transport Rule as a permissible use of the federal government’s authority to regulate interstate air pollution. While that case dealt with the Clean Air Act, the agency action at issue in both cases had to do with interstate pollution and both the Clean Air and Clean Water Acts are premised on cooperative federalism.
The district court decided last September that the TMDL was an appropriate use of federal power. Key to the court’s decision was the TMDL’s demonstrated commitment to cooperative federalism. The history of the Bay preservation efforts, which have spanned more than 30 years, has been the subject of considerable litigation, and yielded numerous consent decrees, settlement agreements, and Memoranda of Understanding, 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, the judge was right—no state had challenged the Bay-wide TMDL. This time around, 21 states have filed an amicus brief asking the Third Circuit to throw out the TMDL. Importantly, of the 21 states, only one—West Virginia—lies within the Chesapeake Bay watershed. The rest of the states (which include Kansas, Alaska, and Wyoming) aren’t even close to the Chesapeake Bay. These states are afraid of the success of the TMDL—they’ve watched states in the watershed face real consequences for their failure to live up to their end of the bargain and, instead of working to improve water quality and public health, have decided to spend resources to challenge the TMDL.
CPR will be following this critical case closely. After all, a determination that the pollution diet is unlawful would call into question the EPA’s approach in thousands of other TMDLs that also address point and nonpoint sources of water pollution. Fortunately, such an outcome is unlikely. As a group of law professors, many of whom are CPR scholars, emphasized in their amicus brief, the case is straightforward:
This case involves a straightforward application of the principles of cooperative federalism and deference to agency interpretations of the statutes and regulations they administer. The . . . Farm Bureau . . casts this case as both an unprecedented and impermissible intrusion on the States’ right to control land-use matters. It is neither. The Supreme Court has long recognized that Congress can use the cooperative federalism model at issue in this case where land use issues touch on Commerce Clause concerns.