Industry asks Supreme Court to take up cleanup plan

By Annie Snider | 11/06/2015 01:22 PM EST

The American Farm Bureau Federation and other industry groups today asked the Supreme Court to review U.S. EPA’s landmark approach for cleaning up the Chesapeake Bay.

The groups argued that the agency far overstepped its bounds under the Clean Water Act in issuing a pollution diet, or total maximum daily load (TMDL), for the entire 64,000-square-mile watershed.

The TMDL sets specific pollution reduction targets as well as hard timelines and backstop measures for the six-state region. That, the groups argued, infringed on state and local authority to regulate land use — a fundamental principle of the Clean Water Act.

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"This case presents a question of fundamental importance to the implementation of the Clean Water Act and in particular Congress’s instructions for how to achieve water quality goals: whether the Act authorizes the prescriptive regulatory scheme promulgated by EPA in the Chesapeake TMDL," wrote the groups, which also include the National Association of Home Builders, National Chicken Council and Fertilizer Institute.

The plan has already been upheld by two lower courts: first by federal district court Judge Sylvia Rambo of the Middle District of Pennsylvania in 2013 and again by the Philadelphia-based 3rd U.S. Circuit Court of Appeals this July.

The 3rd Circuit called industry challengers’ arguments "long on swagger, but short on specificity" in deferring to EPA’s interpretation of the Clean Water Act to authorize the Chesapeake Bay program (Greenwire, July 6).

But in their petition to the Supreme Court today, challengers said that court had erred by focusing on what it saw as the best approach to water quality outcomes rather than on the language of the law itself.

"In fact, the statute could not be clearer," they argued.

The plaintiffs also emphasized the sweeping implications of the precedent that would be set by the cleanup plan.

"It sanctions a regulatory program that will cost State and local governments and businesses tens of billions of dollars to implement and that will constrain State and local programs for decades to come," they argued. "And in endorsing a model that is expressly designed to be used in other watersheds, the Third Circuit’s ruling opens the door for a dramatic expansion of federal power over land use and water quality planning nationwide."

The approach taken in the Chesapeake Bay plan has raised concerns across the country. Twenty-one state attorneys general backed the Farm Bureau’s 3rd Circuit appeal, and the Farm Bureau expects at least that many states to similarly support its Supreme Court appeal. Nearly 40 members of Congress have also weighed in, opposing the plan.

As such, the request for Supreme Court review comes as little surprise to backers of the effort.

"The Farm Bureau and Homebuilder’s decision to seek Supreme Court review of their challenge to the Chesapeake Clean Water Blueprint was both predictable and sad," Chesapeake Bay Foundation President William Baker said in a statement.

"The agriculture and development industries need to accept that the Blueprint is the best hope for restoring water quality in local rivers, streams, and the Chesapeake Bay," Baker argued. "Their continued reluctance in the face of overwhelming public support stands in stark contrast to the efforts of thousands of farmers and homeowners who have taken action, many at their own expense, to move the Bay clean-up efforts forward."

The Supreme Court receives hundreds of petitions every year and agrees to hear less than 100. It takes the votes of four justices to grant review. The court will likely decide whether to take up the Farm Bureau’s case in early 2016.

A spokesman for the Department of Justice declined to comment on the petition.

Click here for the petition.

Reporter Jeremy P. Jacobs contributed.

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