On February 29, 2016, the Supreme Court declined to grant certiorari in American Farm Bureau Fed., et al. v. U.S. Environmental Protection Agency. As a result, the Third Circuit’s opinion upholding EPA’s plan to set a Total Maximum Daily Load (TMDL) for point and nonpoint sources discharging into the Chesapeake Bay stands. The Court’s decision not to take this case on appeal is a victory for IPR’s clients, on behalf of whom IPR drafted an amicus brief in support of EPA in the Third Circuit.
This case arose out of EPA’s plan to clean up the Chesapeake Bay watershed, which spans 64,000 square miles and encompasses Maryland, Virginia, New York, Delaware, New Jersey, Pennsylvania, and D.C. (collectively the “Bay States”). The Chesapeake Bay has long been plagued by runoff from nutrient pollution into its many tributaries, particularly from agricultural sources. Over three decades of efforts by the Bay States, NGOs, and EPA limited the pollution that flows to the Bay from point sources. However, those efforts were insufficient to curtail pollution flowing from nonpoint sources. This lawsuit arose out of a series of cases challenging failures by EPA and particular Bay States to implement TMDLs for waters in parts of the Bay watershed. EPA finally published the Bay TMDL on December 29, 2010, which set standards how much nitrogen, phosphorus, and sediment may flow into the Bay.
The American Farm Bureau Federation, the National Association of Homebuilders, and others responded by suing in federal district court to challenge EPA’s authority to create the TMDL. The Chesapeake Bay Foundation and a group of municipal water treatment entities intervened in the case. In a 100-page opinion, the District Court rejected the Farm Bureau’s argument that the meaning of the statutory term “total maximum daily load” was clear and did not encompass the Bay TMDL issued by EPA. The Farm Bureau appealed its loss to the Third Circuit. In support of that appeal, 21 states’ attorneys general filed a brief that amplified the federalism arguments made by the Farm Bureau and that also introduced an argument based on the Tenth Amendment.
IPR was part of an amici coalition that took on petitioners’ arguments against the plan. In this coalition, IPR had the unique responsibility of highlighting the adverse impacts of nonpoint source pollution in the 21 states whose AGs filed an amicus opposing the TMDL. In the course of drafting that brief, IPR worked to gather a group of signatories that would represent all 21 states. IPR’s brief noted that both intra- and interstate approaches to nonpoint source pollution were falling short. It also included a legal argument that highlighted the statutory basis for EPA’s authority to issue the TMDL.
The end of the appeals process for the petitioners will allow the Bay TMDL plan to continue as scheduled. The plan calls for practices to be in place by 2017 to meet 60 percent of the overall nitrogen, phosphorus, and sediment reductions, and promises to be a major breakthrough in the decades-long effort to clean up the Bay. The Supreme Court’s unwillingness to take up this issue should also provide encouragement to EPA in its efforts to encourage states to implement strong TMDLs for other water bodies.