Ag groups will ask Supreme Court to hear Chesapeake Bay

Farm Bureau and other groups have until Nov. 6 to file petition request for SC to hear case on EPA's pollution diets.

The American Farm Bureau Federation (AFBF) and its allies have been granted an extension to file a petition by Nov. 6 to the U.S. Supreme Court to overturn two lower court decisions upholding the Chesapeake Bay Clean Water Blueprint.

Ellen Steen, AFBF general counsel, said she would expect the Supreme Court to make a decision on whether or not it will hear the case in late winter of 2016.

The case began in 2010, following the EPA’s release of the "pollution diet" or Total Maximum Daily Load (TMDL) with targets for reductions of nutrient and sediment runoff from six states and the District of Columbia. Each state was told to develop its own plan to meet the goals, however, EPA has also stepped in and made specific requirements within the plan.

According to AFBF, under EPA’s view of its power, “EPA could assign nitrogen, phosphorus, and sediment limits for each farm, home site, or even each acre of undeveloped land across the countryside.”

Steen noted the groups are not trying to have the entire cleanup plan invalidated, but rather how EPA has carved up the allowable solutions among different activities and sources.

Steen said as new information and technology becomes available, states don’t have the discretion to change over time what can be used to meet pollution reduction goals without EPA approving those changes. “In the end this creates a bureaucratic process that is not flexible or adaptable that doesn’t allow states to most effectively and efficiently achieve the goals in the long run.”

In arguing for states’ rights in previous appeals, AFBF explained a ruling removing the challenged EPA source limits or “allocations” from the TMDL “would in no way impair the ability of any state to achieve those objectives. It would only allow them the freedom – as Congress intended – to set different allocations and deadlines, if they so choose.”

Twenty-one states filed support in the last appeal brought by the American Farm Bureau Federation, Pennsylvania Farm Bureau, The Fertilizer Institute, National Chicken Council, U.S. Poultry & Egg Assn., National Pork Producers Council, National Corn Growers Assn., National Turkey Federation, and the National Assn. of Home Builders.

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