Updated with comments from Pennsylvania Farm Bureau.
The Supreme Court on Feb. 29 decided not to hear the American Farm Bureau Federation challenge to the Environmental Protection Agency’s pollution regulatory plan for the Chesapeake Bay.
The suit was filed in federal court in 2011 and made its way to the Supreme Court in 2015.
The decision means an appeals court ruling from 2015 stands. The ruling states that the EPA did not overstep its authority in efforts to regulate runoff in the Chesapeake Bay Watershed.
What was the case about?
In December 2010, the Environmental Protection Agency issued the Chesapeake Bay Total Maximum Daily Load, a “pollution diet” to restore clean water in the 64,000-square-mile watershed. The TMDL was required under the Clean Water Act, according to the EPA.
The TMDL called for a 25% reduction in nitrogen, 24% reduction in phosphorus and 20% reduction in sediment entering the watershed annually.
Soon after the TMDL was issued, the American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint challenging the pollution limits. Several farm groups, including the National Corn Growers Association and the National Pork Producers Council, joined the suit as did the National Association of Home Builders.
In 2011, the Chesapeake Bay Foundation, joined by the National Wildlife Federation, Citizen’s for Pennsylvania’s Future and three others motioned to intervene in support of the EPA.
U.S. District Court Judge Sylvia Rambo allowed the five to intervene and ruled the pollution limits established by EPA were within the agency’s duties.
AFBF then appealed to the Third Circuit Court of Appeals. In July 2015, the appeals court upheld the district court ruling. AFBF next filed a petition with the Supreme Court, which today decided not to hear the case.
Pennsylvania Farm Bureau reaction
The Pennsylvania Farm Bureau says the reluctance of the federal courts to become directly engaged in overseeing EPA's regulatory action will have a chilling effect on what farmers, businesses and local communities will be able to do in the future. The Clean Water Act places a limitation on the federal authority to regulate, but the courts' failure in this case to define EPA's limitation of authority, or place any degree of accountability on EPA in its exercise of regulatory authority in the Chesapeake Bay Watershed will leave local citizens and communities vulnerable to severe hardship and unmanageable cost burdens, PFB says.
In order to meet its TMDL goals, EPA has projected that about 20% of all cropland in the Chesapeake Bay Watershed will have to be removed from food production and be converted to grassland or forest in order to achieve its water quality goals.
“The economic viability of farm families could be placed in jeopardy if EPA’s plan forces them to stop growing food on 600,000 acres of fertile farmland located in the watershed," said Rick Ebert, PFB president.
Farm Bureau says the Supreme Court’s decision will have national ramifications as EPA plans to use its Chesapeake Bay TMDL as a blueprint to impose land use control in other major watersheds across the United States.
American Farm Bureau Federation reaction
“We, of course, are disappointed by the Supreme Court’s decision not to examine the lawfulness of EPA’s Chesapeake Bay ‘blueprint’," said Zippy Duvall, AFBF president. "EPA has asserted the power to sit as a federal zoning board, dictating which land can be farmed and where homes, roads and schools can be built. We remain firm in opposing this unlawful expansion of EPA’s power. We will closely monitor the agency’s actions in connection with the Bay blueprint, as well as any efforts to impose similar mandates in other areas. This lawsuit has ended, but the larger battle over the scope of EPA’s power is not over.
“Farmers are justifiably proud of their successes in reducing agriculture’s impact on water quality in the Chesapeake Bay, and they remain committed to further improvements," Duvall said. "We will continue to support state and local programs to improve agriculture’s environmental performance, and we will continue to oppose EPA overreach.”
What are supporters of AFBF saying?
“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 NCGA President Chip Bowling, who farms on the Chesapeake Bay watershed in southern Maryland. “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. That’s why we joined this petition on the Chesapeake Bay TMDL, and we are party to a lawsuit challenging the WOTUS rule.”
The NCGA says the agency’s plan for restoring the Chesapeake Bay has national implications and is an unlawful overreach of federal regulatory power.
However, Bowling says the corn growers support the goals of the Clean Water Act and remain committed to protecting the nation’s water quality.
What are supporters of the EPA saying?
"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,” said Will Baker, Chesapeake Bay Foundation president. “We have consistently urged partnership not litigation, and now we hope to achieve it. Our collective and collegial efforts to Save the Bay, a true national treasure, can be a model for other waters worldwide."
"We applaud the Court's decision to let the lower courts' affirmation of the Chesapeake Bay Blueprint stand,” said Collin O’Mara, National Wildlife Federation president and CEO. “Today is a great day for the Chesapeake's fish, crabs and other wildlife. Now it is time for all parties to the lawsuit to come together, roll up their sleeves, and work collaboratively to restore the bay."