The Environmental Protection Agency building in Washington, D.C. Photo by Michael McCloskey
American Farm Bureau et al v. EPA
The Irony of the Farm Bureau's Efforts
The agricultural industry's aggressive efforts to make sure the federal government cannot deliver clean water in the Chesapeake watershed is particularly ironic since it currently receives more than $20 billion a year in federal subsidies, and has little or no accountability for controlling pollution running into the nation's waterways. The result is a diminished quality of life for all Americans.
Attempts to overturn the Chesapeake Clean Water Blueprint must not succeed.
Supreme Court Denies AFBF Petition;
Federal Court Ruling Affirms Chesapeake Bay Blueprint
In December 2010, after more than 25 years of failed agreements between states in the Chesapeake Bay Watershed to work together to clean up the Bay, the Environmental Protection Agency (EPA), using its authority under the federal Clean Water Act, issued the Chesapeake Bay Total Maximum Daily Load. This "TMDL" is a scientific estimate of the maximum amount of pollution a body of water listed officially as "impaired" can accommodate and still meet water quality standards.
All six Bay states and the District of Columbia developed and agreed to the pollution limits set in the TMDL, and they developed concrete plans to meet these limits by 2025. The pollution limits and the state plans are jointly referred to as the "Chesapeake Bay Blueprint." And, for the first time ever, the federal and state governments agreed to two-year incremental milestones for pollution reductions and there were consequences for those states that failed to meet their assigned goals.
Less than two weeks after the Chesapeake Clean Water Blueprint was born, the American Farm Bureau Federation and the Pennsylvania Farm Bureau filed suit (see Industry Groups File a Complaint Against EPA below)
On September 13, 2013, the Federal District Court for the Middle District of Pennsylvania Judge Sylvia Rambo issued a ruling upholding Bay clean-up efforts, citing them as a model of "cooperative federalism," and rejecting the arguments of the Farm Bureau, the National Association of Home Builders, and other big agriculture interests. The ruling affirmed that the Environmental Protection Agency (EPA), working with the states, has the authority to set science-based pollution limits for the Chesapeake Bay. (View a summary of the ruling or the complete 99-page order) Judge Rambo's decision clearly rejected all three of the Farm Bureau's complaints.
The Farm Bureau didn't stop there, however. They appealed to the Third Circuit, which upheld the District Court's decision in a unanimous ruling.
The AFBF then petitioned the U.S. Supreme Court. On February 29, 2016, the Supreme Court denied the request, letting the Third Circuit ruling—that EPA did not exceed its authority and that the efforts to restore local rivers, streams, and the Chesapeake Bay are entirely legal—stand.
Here's a look at each stage of the case.
Industry Groups File a Complaint Against EPA
It started less than two weeks after EPA established pollution limits for the Bay (known legally in the Clean Water Act as a Total Maximum Daily Load or TMDL). The American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court to throw out the limits.
Not long after the original complaint was filed, the two initiating groups were joined by
- the National Association of Home Builders,
- the National Chicken Council,
- the National Corn Growers Association,
- the National Pork Producers Council,
- the National Turkey Federation,
- The Fertilizer Institute, and
- the U.S. Poultry & Egg Association.
In the case, known as American Farm Bureau Federation et al v. EPA, the plaintiffs made three complaints:
- that the pollution limits or TMDL exceeded EPA's authority,
- that they were based on faulty science, and
- that the public did not have adequate time to participate in the comment process.
CBF Senior Writer and Bay Daily blogger, Tom Pelton, roundly rejected the validity of these complaints in his post on January 10, 2011.
CBF and Allies Step In
In May 2011, CBF filed a motion to intervene in the case in support of EPA, the Blueprint process, and, specifically, the pollution limits. CBF was joined by five other groups:
- Citizen's for Pennsylvania's Future,
- Defenders of Wildlife,
- Jefferson County (WV) Public Service District,
- Midshore River Keeper Conservancy, and
- the National Wildlife Federation.
In October of that year, CBF filed a response to the Farm Bureau's and Homebuilder's motions and offered oral arguments before U.S. District Court Judge Sylvia H. Rambo. Judge Rambo granted CBF and its allies' request to intervene.
The Court's Decision
The Court affirmed that the pollution limits that EPA established in December 2010 for the Chesapeake Bay are within the Agency's purview and based on sound science, and that the Farm Bureau and Homebuilders had ample time to review and comment on the proposed limits. In a thorough and meticulous 98-page opinion, Judge Rambo addressed each of the Farm Bureau's three arguments and rejected them all in turn.
- EPA has authority under the Clean Water Act to issue pollution limits where the states failed to do so. In fact, the states, through the Chesapeake Bay Executive Council, asked EPA to develop a TMDL in 2007. Judge Rambo's ruling emphasized that the states worked cooperatively with EPA to develop the TMDL, and that the EPA simply allocated pollution limits; the states determined how best to achieve those limits themselves.
- The scientific modeling used by EPA to estimate sediment and nutrient loads was sufficient and EPA's use of the data used in the model is entitled to deference.
- The 45-day public comment period was sufficient and in fact, only a 30-day period was required.
View a summary of the ruling or the complete 99-page order.
The AFBF Appeals
The Farm Bureau appealed to the Third Circuit and was joined by "friends of the Court," 20 states from outside of the Chesapeake Bay region. On July 5, 2015, the Circuit Court upheld the District Court's decision in a unanimous ruling.
The Farm Bureau then petitioned the United States Supreme Court to hear its challenge to the Bay TMDL by filing a Petition for Writ of Certioriari on November 6, 2015. CBF and EPA filed briefs in opposition to the petition on January 19, 2016. On February 29, 2016, the Court denied the petition.
What's at Stake?
The Bay TMDL is a landmark planning tool, created cooperatively between the Bay States and EPA. It's our best—and perhaps last—chance at real clean water restoration in the Bay and the rivers and streams that feed it. Nitrogen, phosphorus, and sediment pollution flowing into the Bay from its tributaries cause dangerous algae blooms, create massive dead-zones, and threaten oysters, blue crabs, and fish that call the Bay and its rivers home. When combined with the state plans, implementation of the Bay TMDL will limit the flow of these three pollutants into the Bay and its tributaries. A restored Bay will reap economic and recreational benefits of $130 billion annually.
The Farm Bureau argues that the Bay TMDL robs the States of their authority, yet no state affected by the Bay TMDL agrees. The States and EPA jointly developed the Bay TMDL and it is the State plans that determine how those pollution limits will be achieved. In fact, none of the Bay States legally challenged the Bay TMDL and four of the seven Bay States actually supported EPA in the court of appeals and claimed that their rights would be threatened if the Bay TMDL was overturned. Virginia noted in their amicus curiae brief to the Third Circuit that upholding the Bay TMDL would "allow the Bay States and EPA to continue their work together."
What Happens Next?
The Supreme Court's denial of the AFBF's petition ended the five-year legal battle.
"This is a historic day for the Bay," said CBF President Will Baker upon the Supreme Court announcement. "Everyone who cares about clean water can breathe easier now that the Supreme Court has let stand the lower court decision that Chesapeake Clean Water Blueprint is perfectly legal under the federal Clean Water Act.
"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. We have consistently urged partnership not litigation, and now we hope to achieve it. Let's show the world that the polarization which poisons so much of our society today can be rejected here on the Bay. Our collective and collegial efforts to Save the Bay, a true national treasure, can be a model for other waters worldwide."