Updated: Jul 9, 2020
By Ashley Ellixson and Paul Goeringer
On July 6, the Third Circuit Court of Appeals upheld the Environmental Protection Agency’s (EPA) authority in setting “total maximum daily load” (TMDLs) standards, and the standards set, for the Chesapeake Bay under the Clean Water Act (CWA).
Trade associations with members who will be affected by the TMDL’s implementation sued EPA. The industry groups included, but are not limited to, the American Farm Bureau Federation (AFBF), the National Association of Home Builders, and other organizations for agricultural industries that include fertilizer, corn, pork, and poultry operations (Farm Bureau).
Farm Bureau alleges that all aspects of the TMDL set by EPA go beyond an allowable sum of pollutants. The allowable sums of pollutants are the most nitrogen, phosphorous, and sediment the Chesapeake Bay can safely absorb per day. Farm Bureau argued that this went beyond the scope of authority EPA has in setting these standards.
The Court of Appeals notes that “[c]ourts have recognized the EPA’s authority to fill the CWA’s considerable gaps on how to promulgate a ‘total maximum daily load’.” In determining EPA’s authority under the CWA, the Court used the Chevron analysis to determine whether or not EPA had the authority and whether the TMDLs were within the scope of that authority. In using this analysis, the courts must basically look to the statute and decide whether Congress intended EPA to have the authority or not. Here, the Court of Appeals noted in its opinion that “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution.”
Farm Bureau also argued that EPA was infringing on State’s rights since land regulation (land-use and zoning) is an area typically left up to the states. This undermines the CWA since EPA has jurisdiction over U.S. waters, the bays, gulfs, etc., which the Chesapeake Bay falls under. The Court opines that a different result may be reached here if states’ rights were diminished, but in this case the CWA defers to the states, working in conjunction with EPA, to submit TMDLs for approval which shows that states’ rights are not being infringed upon.
The Court called pollution in the Chesapeake Bay a complex problem, with clear winners and losers, which affects over 17 million people and many more in the future. The Court is essentially saying that EPA has authority to promulgate the CWA and that any argument which undermines the EPA’s authority also undermines the CWA.
The EPA expects 60 percent of the plan (TMDLs, etc.) to be implemented by 2017, with the rest in place by 2025. The six watershed states previously agreeing to the pollution limits and supporting the plan are Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia, along with Washington, D.C.
What Does This Mean to You?
The TMDL (and goals in the TMDL) appears to be valid. We say “appears” because there is always a possibility AFBF or another party could appeal the decision to the U.S. Supreme Court. This would open up another round of arguments and another decision.
The bigger implications are when EPA works on multi-state TMDLs (for example, the TMDL for the Gulf of Mexico). How the Chesapeake Bay TMDL is set (specifically related to non-point source pollution) could be the model for the rest of the country with multi-state TMDLs. For example, if the Third Circuit had ruled differently, this could have potentially limited how EPA could handle non-point source sources in future. This could have been a huge victory for those with non-point sources where multi-state TMDLs are being worked on.
Time will tell the true impacts of this decision. It has the potential to have large ramifications beyond just the Chesapeake Bay. The decision will probably guide EPA and states as they begin the process of negotiating and developing multi-state TMDLs for large water bodies.