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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT