Farm Bureau's Supreme Court challenge to EPA authority gains momentum

Farm Bureau's Supreme Court challenge to EPA authority gains momentum

Hundreds of friends of the court filed briefs supporting Farm Bureau's SCOTUS appeal to overturn EPA authority over states

As reported by Feedstuffs, hundreds of friends-of-the-court supporters filed briefs last Wednesday, supporting American Farm Bureau Federation's petition the Supreme Court of the United States. That petition seeks to have SCOTUS overturn a lower court's decision allowing the Environmental Protection Agency's plan to micromanage state land-use and development decisions under its Chesapeake Bay water quality "blueprint."

PUT TO PASTURE? Under EPA's mandated clean water blueprint, farms unable to meet total maximum daily loads would be forced to convert to pasture or woodlands.

In November, the Farm Bureau and a number of other associations petitioned SCOTUS to review a Third Circuit Court of Appeals decision in Philadelphia upholding EPA's establishment of pollution controls in the Chesapeake Bay which they argue violate the authority granted to the agency under the Clean Water Act.

Despite aggressive new commitments and water quality achievements by the six states in the Bay watershed, EPA asserted federal control over the Chesapeake Bay recovery in its 2010 "blueprint." That plan effectively allows EPA to function as a super-zoning authority over local and state governments -- dictating where homes can be built, where land can be farmed, and where commercial development can occur.

Amicus briefs were filed by 92 members of Congress, 22 state attorneys general, forestry groups represented by the Pacific Legal Foundation, and a broad cross-section of the U.S. economy represented by the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business.

For instance, Rep. Mike Simpson, R-Idaho, was one of those siding with Farm Bureau's appeal: "The Third Circuit Court basically handed EPA the right to usurp states' authority over their own water, as long as the law doesn't expressly prohibit them doing so.  This is totally backwards," asserts Simpson. "Agencies should only act when Congress expressly authorizes them to do so . . .. If this can happen in the Chesapeake Bay area, it can happen in Idaho."

Kansas Attorney General Derek Schmidt, who led the national effort by state attorney generals, notes: "This case has never been about one geographic region or one particular plan to manage runoff. The issue is whether EPA can expand its authority under the Clean Water Act to micromanage how states meet federal water-quality standards."

Other states that signed onto the brief include Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

Bay environmentalists wade in >>

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Bay environmentalists wade in
The Chesapeake Bay Foundation, a chief architect and proponent of the clean water blueprint, sides with EPA.  CBF President William Baker argues the lower courts were correct in rejecting the claim that EPA exceeded its authority.

"The states asked EPA to set the pollution limits to help restore water quality in local rivers, streams, and the Bay," says Baker. "This request came after decades of failed voluntary agreements to do so.  The states and federal agencies working together in partnership under a binding deadline exhibit exactly the type of 'cooperative federalism' that Congress intended when it passed the Clean Water Act, as Federal Judge Sylvia Rambo and the Third Circuit Court of Appeals both affirmed.

"The states which support the Farm Bureau are in direct conflict with the six states in the Bay watershed, all of whom are directly affected by the Bay Blueprint, and none of whom oppose EPA. We believe the Supreme Court will reaffirm the significant factual and legal support for Bay restoration established by the lower courts."

Baker is correct in that state officials of the Bay watershed states – Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia – have not joined into SCOTUS appeal. However, congressional delegates and many non-governmental organizations have.

For background on this issue, see TDML appeal rejected; fall back, reload.

A SCOTUS ruling to overturn EPA's clean water authority could send waves toward the agency's controversial "Waters of the United States" plan, also still be challenged in courts. See Whoa the WOTUS rule.

TAGS: Regulatory
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