Kansas leads 21 states in appealing ruling on "pollution diet"

News
Feb 7, 2014

— States challenge EPA’s authority to regulate nutrient runoff

Twenty-one states have asked an appeals court to invalidate a previous federal court ruling that the U.S. Environmental Protection Agency (EPA) has the authority to implement a so-called pollution diet to reduce nutrient runoff into the Chesapeake Bay.

The brief filed in the U.S. Court of Appeals for the Third Circuit in Philadelphia last Monday was led by Kansas Attorney General Derek Schmidt and is signed onto by attorneys general in 20 other states including Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

“The issue is whether EPA can reach beyond the plain language of the Clean Water Act (CWA) and micromanage how states meet federal water quality standards,” Schmidt said in a statement.

“We think the clear answer is no, and we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin.”

EPA and agriculture groups stand on the same side opposing another lawsuit that attempts to force the agency to set more-strict numeric standards in the Mississippi River basin. Last March a number of ag groups including the Fertilizer Institute, American Farm Bureau, National Pork Producers Council, Agricultural Retailers Association and the National Corn Growers Association joined 13 states in support of EPA’s opposition to the lawsuit.

In the Chesapeake appeal, the 21 states filed their brief after a federal court in Pennsylvania in September ruled against the American Farm Bureau and other agriculture groups’ attempt to stop EPA efforts to set total maximum daily loads, or TM- DLs. EPA implemented its Chesapeake Bay “pollution diet” in late 2010.

A federal judge ruled that groups opposed to EPA’s role in the Chesapeake Bay failed to demonstrate that EPA’s decisions were either arbitrary or capricious.

The Chesapeake Bay TM- DL covers a 64,000-squaremile watershed with more than 50 tributaries across Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia and West Virginia.

Agricultural groups argued in their lawsuit that EPA didn’t have the authority under the Clean Water Act to issue the TMDL and that the agency used flawed data in setting limits for agricultural runoff.

Schmidt said the states are challenging the decision because EPA is moving beyond the authority of the Clean Water Act.

“Congress deliberately structured the Clean Water Act to involve states in the decision-making process when nonpoint source runoff is being regulated,” he said in a statement. “That’s because runoff regulation inevitably implicates land use decisions and private property rights, and Congress did not intend to centralize those decisions in Washington, D.C.”

In filing the appeal, the states contend that instead of setting an aggregate amount of certain pollutants allowed in impaired waters, the EPA used the Chesapeake Bay TMDL to “micromanage sources of pollution that by tradition—and by statute—have been beyond EPA’s reach.

“As a result, this case has far-reaching implications for states across the country. If this TMDL is left to stand, other watersheds, including the Mississippi River Basin (which spans 31 states from Canada to the Gulf Coast), could be next,” the states said in their brief.

“...EPA can create incentives for states to control nonpoint sources, but it cannot mandate how states choose to do so. Moreover, it regulates ‘upstream’ states whose borders do not even reach the Chesapeake Bay. Such regulation is beyond EPA’s authority.

“To justify its actions, EPA primarily points to its own regulations. But of course EPA cannot give itself authority by regulation that Congress has not given it by statute. Even if the CWA’s TMDL requirement is ambiguous, EPA’s expansive interpretation of its authority is contrary to the Act’s cooperative federalism framework and exceeds any permissible construction of the statute. The Chesapeake Bay TMDL should be invalidated because it exceeds EPA’s authority under the CWA.” —Todd Neeley, DTN

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