By John R. Embick, Esq.
Chair, Environmental Law Section
10/1/2015
Two years ago, I wrote about the Pa Middle District federal court decision that relates to the Obama Administration’s (and the states’) renewed efforts to improve water quality in the Chesapeake Bay, and reduce the pollution that enters the Bay from various sources (air deposition, point-source discharges, and non-point water discharges).
The main effort involved the establishment of a “pollution diet” for the Bay, and the “diet” affects all of those six states (and D.C.) which are tributary to the Bay. A huge part of Pennsylvania, extending from the Maryland border all the way north to the New York border, is located in the Chesapeake Bay watershed. The watershed is so vast (encompassing 64,000 square miles) than even a portion of western Chester County lies in the watershed basin (you can see watershed boundary signs on the Pennsylvania Turnpike, for instance). And, of course, many Chester County Bar members recreate in and upon the Bay waters (and in doing so probably add “point source” pollution) especially during Bar Sail.
On December 29, 2010, U.S. EPA issued a permit setting “Total Mass Daily Loading” or (“TMDL”) loading limits for the Bay, and asserted its authority to take such action under the Federal Water Pollution Control Act (“Clean Water Act,”or “CWA”). The TMDL permit establishes pollution loading shares for the Bay tributary states (Maryland, Virginia, West Virginia, Pennsylvania, New York, and Delaware (as well as D.C.)), and addresses pollution loadings of sediment, phosphorus and nitrogen. This TMDL permit constitutes the “pollution diet.”
The “meat and potatoes” of the Chesapeake Bay TMDL permit are the limits for pollutants, and the states’ plans to control the discharge of pollutants. The Bay TMDL requires, overall, a 25 % decrease in nitrogen loadings, 24% reduction in phosphorus loadings, and 20% reduction in sediment loadings, and allocates reductions between point sources and non-point sources of pollution. EPA leaves to the states the problem of attaining the reductions, and the states’ attainment plans are called “Watershed Implementation Plans” or “WIPs”. The loading allocations are, in part, the product of a very complex, mega-sized water quality model of the Bay.
One key feature of the TMDL process is the legal underpinning for EPA’s authority to establish a TMDL permit with pollution allocations. EPA takes the position that when a state reports that waters are “impaired” (i.e., not meeting water quality standards), EPA is authorized to set a TMDL permit for the impaired waters (if the state does not take action). The Bay and many of its tributaries are impaired waters.
Less than two weeks after the Bay TMDL was issued, a broad challenge was filed on January 10, 2011, by the American Farm Bureau Federation (and the Pennsylvania Farm Bureau) at Docket No. 1:11-cv-00067 SHR, in the Federal District Court for the Middle District of Pennsylvania (the case was assigned to Judge Sylvia Rambo). A number of parties were permitted to intervene, including the home builder associations, and several environmental groups. Interestingly, no participant state (or D.C.) challenged the TMDL permit. Farmers and agricultural groups are particularly upset because the pollution allocations likely will require far more effort and expense to reduce non-point discharges (e.g., run-off) from agricultural operations and fields.
The suit raised challenges, among other things, to: (1) EPA’s authority to set pollution loading allocations in TMDL permits (i.e, the U.S. may only ask for implementation plans from the states, and does not have the authority to impose limits); (2) the underlying science justifying the pollution reductions (i.e., the Bay water quality model is defective); and (3) the length of the public comment period (i.e., the public comment period was too short for meaningful public participation).
On September 13, 2013, ruling on cross summary judgment petitions, Judge Sylvia Rambo ruled in favor of EPA on every issue. In providing a detailed background of the case, she wrote that “The ecological and economic importance of the Chesapeake Bay is well-documented. As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things.”
On July 6, 2015, the 3d Circuit upheld the lower court. Writing for a unanimous three-judge 3d Circuit panel, in the case of American Farm Bureau Federation, et al. v . U.S. EPA, et al., Doc. No. 13-4079, Judge Ambro upheld the “careful and thorough opinion of the District Court.” Slip Op. at p. 60.
On appeal, the court found that the Farm Bureau challenge presented a classic case of Congressional intent and statutory interpretation, and turned on the meaning of “TMDL”. Unfortunately, “TMDL” is not defined in the CWA (the TMDL provision is found at 33 U.S.C. § 1313(d)(1)(C)), and the Act does not provide any guidance as to how a TMDL is to be created.
The Farm Bureau interprets the words “total maximum daily load,” as unambiguous. The Farm Bureau contends that a TMDL can consist only of a number representing the amount of a pollutant that can be discharged into a water body. In issuing the Chesapeake Bay TMDL, the EPA (1) included in the TMDL allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants (including point-sources and non-point sources of pollution), (2) promulgated target dates for reducing discharges to the level the TMDL envisions, and (3) obtained assurance from the seven affected states that they would hit the targets. These latter actions exceeded EPA’s authority under the CWA, according to the Farm Bureau.
Circuit Court Judge Ambro turned to Chevron v. NRDC, 467 U.S. 837 (1984), for guidance in establishing whether EPA had the authority to “fill in the gaps” left by Congress. Slip Op. at p. 29.
Following Step 1 (is the intent of Congress ambiguous?) of the Chevron analysis (Chevron, 467 U.S. at 842–43) Judge Ambro found that the term “TMDL” was sufficiently ambiguous. In particular, the court found that the word “total” was susceptible to numerous interpretations, and that EPA was authorized to “fill in the gaps.” Accordingly, EPA legally could (1) account for point and nonpoint sources of pollution, (2) set forth schedules in states will progress toward achievement of water quality standards and (3) assess whether a state will meet the goals of pollution reduction. Slip Op. at. p. 53.
In assessing Step 2 (is the agency’s interpretation arbitrary, capricious, or manifestly contrary to the statute? (Chevron, 467 U.S. at 844)), Judge Ambro reviewed a host of supporting material (e.g., statutory provisions, legislative history, case precedents, etc.) to find that EPA’s approach satisfied Step 2 of the Chevron test.
“The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.” Slip Op. at P. 60.
In describing the Farm Bureau’s continuing struggle (they have indicated that they will request a review by the U.S. Supreme Court), representatives of the Farm Bureau stressed that the Farm Bureau is not challenging EPA’s power to set the limit, but rather they are resisting the limits EPA placed on the various pollution sources (i.e., the substantial pollution burden derived from non-point pollution sources, largely attributed to agricultural activities).
Curiously, John Mueller, Farm Bureau vice president of litigation, was quoted as conceding that the current clean-up plan for the Bay must be implemented: “It’s the only way the bay is going to get cleaned up.” York Dispatch, 9/28/2015, by David Weissman (http://www.yorkdispatch.com/breaking/ci_28888705/farm-bureau-challenging-epa-authority-chesapeake-bay-pollution).