Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay. The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs.
As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment. According to brief co-author Rena Steinzor, “The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA’s authority to work with states to adopt broad and protective TMDLs for impaired waters across the country.” Nonpoint sources of pollution – particularly from agriculture – are the primary cause of impairment in the Chesapeake Bay and in many water bodies across the country. And TMDLs can be the perfect tool to address the problem – if EPA and the states embody the spirit of “cooperative federalism.”
According to case brief co-author and CPR Scholar Emily Hammond, "The bottom line is that--with the court's sound logic and appropriate deference to EPA's interpretive authority--we can now get on with the business of cleaning up the Bay."
The Farm Bureau’s narrow view that a TMDL is just a number, as opposed to a framework for allocating pollutants did not hold up, the Court said. The court also applied similarly straightforward reasoning to dispatch with the appellants’ two other points of contention with the Bay TMDL – that a TMDL cannot include deadlines or a requirement that the implementing states provide reasonable assurance that the TMDL can be achieved.
Having concluded that the applicable statutory terms were ambiguous, the court had no problem holding that the interpretation provided by EPA was reasonable, in accordance with the Chevron doctrine. In support, the court highlighted the convincing evidence provided by the legislative history of TMDLs, in particular, the 1987 amendments to the CWA, which recognized the broad conception of TMDLs that EPA and the states had already adopted (and which also codified the Chesapeake Bay Program and requirements for the states to specifically implement water quality measures).
Finally, the court rejected the appellants’ invitation to apply interpretive canons of constitutional avoidance, reasoning that these canons were mostly irrelevant, as the TMDL was specifically designed to be a tool of cooperative federalism and because the Bay TMDL regulated an interstate body of water, which is at the core of Congress’s power under the Commerce Clause.
Bay States can now move forward unencumbered by the potential devastating consequences of a federal court decision in favor of the Farm Bureau’s campaign to gut a landmark initiative to save the Chesapeake Bay.
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Evan Isaacson | July 31, 2015
Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay. The ruling affirmed the […]
Katie Tracy | July 29, 2015
A fair day’s pay for a fair day’s work.” This is the premise on which the Federal Labor Standards (FLSA) Act was enacted 75 years ago. By 1938, the Great Depression had brought about high unemployment and had left workers with little leverage to negotiate over working conditions or hours, setting the stage for employers […]
Evan Isaacson | July 27, 2015
Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater […]
James Goodwin | July 22, 2015
When it commenced on June 1, OIRA’s review of the EPA’s draft final rule to limit greenhouse gas emissions from existing power plants launched a flurry of lobbying activity among a veritable who’s who of America’s largest fossil fuel polluters. In just over six weeks, the White House’s antiregulatory shop has presided over no less […]
Rena Steinzor | July 16, 2015
Labor Secretary Tom Perez came into office pledging to create good jobs and take on the economic injustice that oppresses blue-collar workers, from raising the minimum wage and restoring unpaid overtime to combatting wage theft. Luckily, the head of his Wage and Hour Division, David Weil, the author of a revelatory report on how to […]
Erin Kesler | July 16, 2015
Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association. The professors submitted the brief because, “they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that […]
James Goodwin | July 15, 2015
“I’m Republican, and I want to do regulatory reform.” Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years. Who could blame them? The unshakable conviction that our regulatory system is […]
Matt Shudtz | July 14, 2015
Public Citizen to host discussion of CPR Member Scholar Rena Steinzor’s new book, “Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.” On Monday, July 20, 2015 Public Citizen, the Center for Progressive Reform and the Bauman Foundation will lead a discussion focused on CPR’s immediate past president and University of Maryland Law School […]
Amy Sinden | July 13, 2015
In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking. The decision struck down EPA’s limits on mercury emissions from power plants for the agency’s failure to consider costs, and so appears, superficially at least, like a win […]