Farm Bureau Effort to Thwart Bay Cleanup Progress Rejected by Third Circuit

by Evan Isaacson

July 31, 2015

Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay.  The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs.

As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment.  According to brief co-author Rena Steinzor, “The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA’s authority to work with states to adopt broad and protective TMDLs for impaired waters across the country.” Nonpoint sources of pollution – particularly from agriculture – are the primary cause of impairment in the Chesapeake Bay and in many water bodies across the country.  And TMDLs can be the perfect tool to address the problem – if EPA and the states embody the spirit of “cooperative federalism.” 

According to case brief co-author and CPR Scholar Emily Hammond, "The bottom line is that--with the court's sound logic and appropriate deference to EPA's interpretive authority--we can now get on with the business of cleaning up the Bay."

The Farm Bureau’s narrow view that a TMDL is just a number, as opposed to a framework for allocating pollutants did not hold up, the Court said.  The court also applied similarly straightforward reasoning to dispatch with the appellants’ two other points of contention with the Bay TMDL – that a TMDL cannot include deadlines or a requirement that the implementing states provide reasonable assurance that the TMDL can be achieved. 

Having concluded that the applicable statutory terms were ambiguous, the court had no problem holding that the interpretation provided by EPA was reasonable, in accordance with the Chevron doctrine. In support, the court highlighted the convincing evidence provided by the legislative history of TMDLs, in particular, the 1987 amendments to the CWA, which recognized the broad conception of TMDLs that EPA and the states had already adopted (and which also codified the Chesapeake Bay Program and requirements for the states to specifically implement water quality measures).

Finally, the court rejected the appellants’ invitation to apply interpretive canons of constitutional avoidance, reasoning that these canons were mostly irrelevant, as the TMDL was specifically designed to be a tool of cooperative federalism and because the Bay TMDL regulated an interstate body of water, which is at the core of Congress’s power under the Commerce Clause.

Bay States can now move forward unencumbered by the potential devastating consequences of a federal court decision in favor of the Farm Bureau’s campaign to gut a landmark initiative to save the Chesapeake Bay.

 

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Evan Isaacson, J.D., is a CPR Policy Analyst. He joined the organization in 2015 to work on its Chesapeake Bay program, having previously worked as a policy analyst at the Maryland Department of Legislative Services.

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