Two Interesting Things About the Chesapeake Bay TMDL Decision

In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL.  This is an interesting and important case, and it will take a while to digest.  But just based on a preliminary read, a few issues seem particularly interesting and important.

What does TMDL mean?  The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs.  The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act.  The Third Circuit rejected that argument, instead concluding that “’total maximum daily load’ is a term of art meant to be fleshed out by regulation, and certainly something more than a number.”

The importance of that conclusion could go beyond this case.  In some TMDLs, EPA or the states have done quite a lot of fleshing out, sometimes using TMDLs to set budgets for things, like impervious cover area or stormwater flow, that aren’t pollutant masses at all.  They have done so, I’ve argued elsewhere, for very good practical reasons.  But courts have questioned the legality of those alternative approaches to TMDL writing, instead viewing the literal language of section 303 as setting not just requirements for action but also boundaries upon what EPA can do.  The reasoning of this particular decision, however, would support greater flexibility.

Federalism.  The Farm Bureau also grounded its argument in its particular version of federalism, under which canons of statutory construction require a court to disfavor any legal interpretation that would push water quality law into the realm of land use regulation.  The court described these arguments as “long on swagger but short on specificity.”  And it concluded that the infringements upon state land use authority, to the extent they existed, came from clear statutory requirements, and that the Farm Bureau had overstated the extent of those infringements. 

Nevertheless, it seemed to accept the general principle that an ambiguous statute ought not be construed to change the balance of federal and state authority over land use. 

Why does this matter?  On the one hand, I think it’s quite nice that the court held as it did, and its reading of the Clean Water Act seems correct.  But even partly accepting the Farm Bureau's asserted canon of construction seems like a further, if slight, step in the courts’ constitutionalization of the boundary between state land use and federal environmental law.  And that doesn’t make a whole lot of sense.  In practice, that boundary is incredibly murky, if it’s discernable at all, and the feds and the states do some of their best work when they collaborate in the zones where that boundary is not at all clear. Judicially-enforced lines aren't likely to be very much help.

This is a very minor quibble, of course, with a well-reasoned decision that produced a sensible outcome.  But the future constitutional status of that boundary is something to watch in future cases.

This blog is cross-posted on the Environmental Law Professors Blog.