The American Farm Bureau Federation last week asked a federal appellate court in Pennsylvania to reverse a lower court ruling that upheld pollution limits for the Chesapeake Bay watershed imposed by the Environmental Protection Agency.
Although restricted to areas surrounding the Chesapeake Bay, the court's decision could have sweeping effects on states and economic activity across the country. EPA has claimed that its Bay limits were developed in cooperation with the Bay states. But the AFBF brief points out that "if EPA can set federal limits and deadlines in a TMDL, then it can do so with or without state cooperation: that is why 21 State Attorneys General have supported us as amici."
The appellate court will decide whether EPA has the power to set only the "total" allowable pollutant load for waters, as AFBF and its allies maintain, or also to set individual limits for farming, construction or other activities across the landscape, as EPA claims. AFBF maintains that Congress reserved such land use decision-making exclusively for the states.
According to AFBF, under EPA's view of its power, "EPA could assign nitrogen, phosphorus, and sediment limits for each farm, home site, or even each acre of undeveloped land across the countryside." Such broad power "amounts to nothing short of federal land use zoning authority, which cannot be squared with Congress's clear and consistent determination to reserve such authority for the states."
AFBF also noted that because restoration of the Bay does not depend on the unlawful aspects of the TMDL before the court, cleanup would continue with a court ruling in AFBF's favor. According to the AFBF brief, a ruling in its favor would not disturb the total pollutant limit set by EPA for each segment of the Bay. In addition, a ruling removing the challenged EPA source limits or "allocations" from the TMDL "would in no way impair the ability of any state to achieve those objectives. It would only allow them the freedom-as Congress intended-to set different allocations and deadlines, if they so choose."