Coalition of Congress Members, States, & Trade Groups Support Supreme Court Bay TMDL Challenge

A December 13, 2015, Bay Journal article reported a coalition of congress members, states, and trade groups have joined in requesting that the United State Supreme Court take up the American Farm Bureau Federation’s challenge to the Chesapeake Bay Total Maximum Daily Load (TMDL). As previously reported on Conduit Street, the Federation has lost its challenge that the United States Environmental Protection Agency (EPA) exceeded its authority in mandating the Bay TMDL in both the United States District Court and the 3rd Circuit Court of Appeals. From the article:

More than 90 members of Congress, along with 22 states and several business trade groups, have asked the U.S. Supreme Court to take up the American Farm Bureau Federation’s challenge to the Chesapeake Bay cleanup plan. …

The Farm Bureau contends that setting limits on different sources of pollution, such as urban runoff, wastewater treatment plans and stormwater, in effect regulates land use — authority for which rests with the states. …

Attorneys general from 22 states — none in the Bay watershed — agreed. “By embracing EPA’s expansive interpretation of its authority the Third Circuit allowed EPA to replace States as the ultimate land-use regulators, upending the balance between federal and state authority without any clear congressional authorization as the court requires,” they said in their Friend of the Court brief filed Dec. 9.

A brief filed the same day by 92 Republican members of Congress — including 14 from Bay watershed states — argued that the EPA’s interpretation of its authority under the vaguely worded section of the Clean Water Act that deals with TMDLs exceeded what Congress intended when writing the law. …

A third brief from the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Small Businesses Legal Center, echoed those arguments. “If the TMDL stands, EPA would have a green light to exercise significant power over land use decisions affecting local businesses throughout the nation,” they told the court.

Included in the congressional brief was Representative Andy Harris of Maryland. The article noted that the Supreme Court would likely decide whether to take up the case in early 2016.