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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  5. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

ADVERTISEMENT