Further Opinions and Analysis on Chesapeake Bay TMDL Decision

As previously reported on Conduit Street, the United States 3rd Circuit Court of Appeals has unanimously upheld the authority of the United State Environmental Protection Agency (EPA) to mandate the Chesapeake Bay Total Maximum Daily Load (TMDL) under the federal Clean Water Act.  The opinion was a blow to the American Farm Bureau Federation, the National Association of Home Builders, and other stakeholders who had challenged EPA’s authority to implement the Bay TMDL.

Court of Appeals Opinion

Additional analysis and opinions on the holding are collected here.

The Chesapeake Bay Foundation (CBF) expressed its satisfaction with the holding in a July 7, 2015, press release:

“This is a great day for everyone who cares about clean water and the Chesapeake Bay,” said CBF President William C. Baker. “In a case challenging EPA’s Clean Water Act authorities, the Third Circuit Court in Philadelphia has spoken. The Court affirmed the same, reasoned decision offered by the lower court.” …

“Instead of embracing the concept of ‘cooperative federalism’ and supporting the hard work of the states and EPA to develop science-based pollution limits and individual state plans to achieve those limits, the Farm Bureau and its allies have fought EPA and the States every step of the way, “said CBF Vice President for Litigation, Jon Mueller. “We can only imagine how successful the Bay Blueprint would be if these groups supported rather than opposed efforts to reduce pollution.”

Reaction from the other side was delayed while stakeholders consider whether or not to appeal the decision according to a July 6, 2015, Bay Journal article:

A spokesman for the American Farm Bureau Federal said the organization was reviewing the decision and would likely not have any formal comment for several days.

A July 6, 2015, Washington Post article noted that many non-Bay states had also joined the legal challenge against the Bay TMDL, concerned about what the precedent might mean for their states:

Attorneys general from 21 mostly-Midwestern states joined the Farm Bureau in its challenge of the regulations, arguing that the EPA would try next to impose similar programs for their watersheds, including the Mississippi River Basin.

“We find it an obscene irony that 21 attorneys general, 20 of whom are outside the Chesapeake watershed, would join in a lawsuit to stop us from cleaning up our backyard,” [CBF President William] Baker said.

West Virginia Attorney General Patrick Morrissey (R) was the only attorney general in the Chesapeake region to join the challenge, despite West Virginia signed on to the program. His predecessor, Democrat Darrell McGraw, was in office at the time of the agreement.





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