ILNews

Indiana joins brief seeking to halt EPA-led plan to clean up Chesapeake Bay

Back to TopCommentsE-mailPrintBookmark and Share

Decades of squabbles over cleaning up one of America’s most historic but polluted waters resulted in an agreement between states and the federal government that supporters say could restore the Chesapeake Bay to a swimmable, fishable national treasure.

But if Indiana and other states without a direct stake in the Chesapeake have their way, the cleanup hashed out between bay states and the Environmental Protection Agency will be stopped.

“To have states outside the bay region file briefs to oppose how we’ve resolved this historic and very thorny problem, I have to say, is a little surprising,” said Jon Mueller, vice president of the Chesapeake Bay Foundation. “It’s a little short-sighted in my view.”
 

Chesapeake-algae-bloom-15col.jpg Overabundant nutrients from agricultural fields and development flow into tributaries of the Chesapeake Bay, causing algae blooms like this one that have resulted in dead zones in the waters off Delaware, Maryland, Virginia and the District of Columbia. (Photo courtesy Chesapeake Bay Foundation)

The foundation supports cleanup efforts among the bay watershed states – Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia. Together with the Environmental Protection Agency, they crafted a plan under the Clean Water Act called the Chesapeake Bay TMDL, or total maximum daily load, that sets so-called “pollution diets” for nitrogen, phosphorus and sediment entering the bay from various states.

Those pollutants largely come from agricultural runoff, and about 300 million pounds of nitrogen annually seeps into the bay from streams and rivers in the watershed states. Overabundant nutrients feed algae blooms that create dead zones in the bay.

American Farm Bureau, The Fertilizer Institute and others sued EPA in an effort to block the Chesapeake Bay TMDL plan. A District Court judge upheld the plan, and now the matter is before the 3rd Circuit Court of Appeals in Philadelphia. The case is American Farm Bureau Federation, et al. v. Environmental Protection Agency, 13-4079.

The Office of the Indiana Attorney General is co-author of an amicus brief authored by the Kansas attorney general and representing 21 states that believe the “EPA is exceeding its statutory authority under the Clean Water Act and encroaching upon the sovereign authority of state governments,” according to Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller.

“The brief contends that if the District Court’s incorrect ruling is not reversed, then it could open the door to EPA dictating state land-management decisions in 31 states in the Mississippi River basin, contrary to the principle of cooperative federalism,” Corbin said.

That argument puts the amicus states in a peculiar position, Mueller said, because District Judge Sylvia H. Rambo of the Middle District of Pennsylvania found the plan “was the result of collaborative, cooperative federalism.”

“They claim it’s a states’ rights issue,” Mueller said of the states challenging the bay plan. “To suggest states don’t have the right to work with the federal government to resolve serious problems would ignore civil rights and hundreds of other issues.”

Mueller said states also have the right to jointly determine that working with EPA on a cleanup is in their interest, as was the case here. “It wasn’t always an easy process, and this was a long, drawn-out fight,” he said.

“Sadly, I don’t think (the amicus states) understand the facts here and accepted the argument of the Farm Bureau whole cloth,” he said.

Fighting words

Now, the outside states’ intervention has led to fighting words. The foundation characterizes the filing as non-interested parties recruited by Big Agriculture lobbyists to reverse a clean-water blueprint they say is working.

“We say to Missouri, Indiana, Kansas, Alaska and the other 17 states, don’t tell us how to restore clean water in our backyard,” foundation president Will Baker said after the brief was filed.

The foundation also responded with an analysis based on EPA water-quality assessments for each of the 21 states signing the brief. It reported that in 2008, 58 percent of Indiana’s rivers and streams and 88 percent of the state’s lakes, ponds and reservoirs were classified as impaired, meaning they don’t meet minimum state water-quality standards.

Indiana University Robert H. McKinney School of Law professor Carlton Waterhouse previously served as an EPA enforcement attorney. He said it’s understandable that Indiana and other states with farming interests would intervene, but it’s also a political calculation.

“The brief filed by the other states more or less contains suggestions the (bay) states acquiesced to an EPA power grab,” Waterhouse said. “There’s a very different story being told by the judge.”

Waterhouse said the brief lends moral support to Farm Bureau and agricultural interests and could serve notice to EPA as “sort of a shot across the bow” that a similar TMDL plan for the Mississippi River, for instance, will be met with resistance from states in the watershed such as Indiana.

“At a philosophical level, I can understand where they’re coming from, but at a factual level, because (the Chesapeake TMDL plan) was done at the request of the states, it seems odd to say EPA can’t act at the states’ request,” Waterhouse said. Besides, intervening with mandates “is not typically how EPA has solved multi-state problems,” he added.

Professor John Nagle teaches environmental law at the University of Notre Dame Law School. He said the Clean Water Act focuses on controlling pollution from point sources such as factories, but that’s not where most of the pollution in the Chesapeake comes from.

“There is lots of disagreement about what (cooperative federalism) actually means,” Nagle said. “That’s especially true with respect to the Total Maximum Daily Loads that are still being fleshed out more than 40 years after Congress enacted the CWA.”

Waterhouse agreed. “The concern here is that non-point sources … which are largely farming, timber and other types of enterprises, are going to be subject to greater control by the EPA through the TMDL process,” he said.

The states’ amicus brief asks the 3rd Circuit to “reject EPA’s attempt to expand its authority at the expense of states’ traditional control over land management decisions without a clear statement from Congress.” It argues that the authority EPA seeks would allow it to make decisions for agricultural land that “produces half the nation’s corn, 41 percent of the nation’s soybean exports, and one-third of all the nation’s hog and pig sales.”

Nagle said he believes EPA can prevail by persuading the court that the Clean Water Act is unclear with respect to TMDL regulation. “So the petitioners have to persuade the court that the CWA clearly answers this question in a way that precludes EPA’s interpretation.”

He said the amicus states’ argument that EPA relied on coercion to obtain the bay states’ acquiescence doesn’t seem strong, but other elements could be persuasive.

“The petitioners make a good argument that EPA has failed to heed the statutory focus on the ‘total’ maximum daily load of pollutants, and instead EPA has looked at each separate part rather than just the total,” Nagle said. “It may help the petitioners that another court interpreted ‘daily’ literally to mean that pollution levels cannot be measured on an hourly or annual basis, for example.”

Bay states have responded with a brief in support of EPA, and Mueller said short of a clear showing of reversible error by the District Court, the cleanup plan should be allowed to proceed.

“We’re hoping we prevail and the rest of the nation will get to see the fruits of our efforts,” he said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT