Supreme Court shoots down challenge to cleanup plan

By Robin Bravender | 02/29/2016 01:03 PM EST

Correction appended.

The Supreme Court today rejected an industry-led effort to topple U.S. EPA’s Chesapeake Bay cleanup plan.

In a short order issued this morning, the court refused to hear an appeal of a lower court’s decision that upheld EPA’s "pollution diet" for the watershed. The American Farm Bureau Federation and its allies, including 22 states and dozens of lawmakers, had urged the justices to take the case, arguing that EPA’s plan violates the Clean Water Act.

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The Supreme Court’s rejection leaves in place a decision issued last year by the Philadelphia-based 3rd U.S. Circuit Court of Appeals, which marked a major victory for the Obama administration.

In that ruling, the lower court upheld EPA’s Total Maximum Daily Load (TMDL) process for cleaning up the 64,000-square-mile watershed. EPA issued the TMDL in December 2010 (Greenwire, July 6, 2015).

The court’s refusal to hear the case may have been affected by the death of Justice Antonin Scalia. Very few cases are accepted by the high court for review, but Scalia was one of the justices most skeptical of environmental regulations. It takes the votes of four justices for the court to agree to take a case. With only eight justices remaining on the court for the foreseeable future, it’s possible that the court is now reluctant to take on new cases that could split 4-4 along ideological lines. Such a split simply upholds a lower court ruling without setting new precedent.

Timothy Bishop, an attorney at Mayer Brown LLP representing the Farm Bureau in the case, said last week that this case was among the issues "that are just so important that they cry out for Supreme Court review." He said the justices’ analysis was needed to bring certainty to the issue.

The Farm Bureau warned the justices that EPA’s approach "makes nonsense of the word ‘total’ by imposing inflexible allocations of pollutant loads over small geographic areas by source types, as well as rigid deadlines for compliance regardless of cost or feasibility." The group said the agency’s requirements violate the plain language of the Clean Water Act and "mean that EPA, rather than the states, gets to decide how the burdens of achieving water quality goals are shared among land uses like farming, construction, and forestry," although Congress assigned responsibility for those decisions to the states (Greenwire, Feb. 3).

Twenty-two states — led by Kansas, Indiana and Missouri — and 92 members of Congress also argued that EPA had overreached (Greenwire, Dec. 10, 2015).

The National Corn Growers Association today expressed disappointment with the court’s rejection. "The EPA has consistently pushed the legal limits of the Clean Water Act, with the Chesapeake Bay blueprint and the Waters of the U.S. (WOTUS) rule being two of the most recent examples," said Chip Bowling, president of the association, which was among the industry challengers.

"When Congress passed the Clean Water Act, their intention was to create balanced, practical policies to protect America’s water resources with a clear division of power between states and the federal government. In both of these cases, the EPA’s actions represent an unlawful expansion of their authority," Bowling added.

Environmental advocates, meanwhile, hailed the high court’s refusal to take the case.

Rena Steinzor, a member scholar at the Center for Progressive Reform, called the move "a milestone victory for the restoration of the Chesapeake Bay and the thousands of local waters in the Bay watershed. Today’s decision should at last put an end to any efforts to evade responsibility for reducing nutrient and sediment pollution." She said the decision marks "a clear affirmation of the plain meaning of the Clean Water Act and EPA’s authority to enforce it."

Chesapeake Bay Foundation President William Baker said in a statement today, "Everyone who cares about clean water can breathe easier now that the Supreme Court has let stand the lower court decision that the Chesapeake Clean Water Blueprint is perfectly legal under the federal Clean Water Act." Baker’s group defended EPA in the lawsuit.

"Now that all of the legal challenges have been denied, we hope those who have opposed the Chesapeake Clean Water Blueprint will devote their time, expertise, and money to working with all of the clean water partners to help Save the Bay. We have consistently urged partnership not litigation, and now we hope to achieve it," Baker added.

The Obama administration had pressed the Supreme Court to pass on the case, arguing that EPA’s approach is legal under the Clean Water Act (Greenwire, Jan. 20).

Correction: An earlier version of this article stated that the Farm Bureau said EPA’s requirements violated the Clean Air Act; it is the Clean Water Act.

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