Jordan Wimpy

March 5, 2011

In early December 2010, I wrote a short note outlining Sen. Ben Cardin's (D-MD) Chesapeake Clean Water and Restoration Act (S. 1816) and detailing his attempt to guide it through the recent lame duck session Congress. Sen. Cardin's efforts failed, although the pursuit of a cleaner Chesapeake Bay continued through the actions of the Environmental Protection Agency.

As 2010 drew to a close, the EPA promulgated the Chesapeake Bay Total Maximum Daily Load (TMDL), an action hailed as a "landmark 'pollution diet' to restore clean water in Chesapeake Bay and the region's streams, creeks, and rivers." The new TMDL, or pollution diet, aims for a "25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment" and is designed to ensure that all measures to reach these ambitious goals are in place by 2025. The success or failure of the EPA's efforts will not be known for many decades. However, the establishment of the final TMDL, as stated by EPA Administrator Lisa P. Jackson, marks "an historic day for the decades-long effort to restore Chesapeake Bay" and the realization of "huge strides that will yield real results for millions of people"

Environmental regulatory measures, however, are often cause for celebration for some and a point of consternation for others, and the Chesapeake Bay pollution diet is no different. Less than two weeks after it was unveiled, the American Farm Bureau Federation (AFBF) hit the TMDL with its first legal challenge. The lawsuit, filed January 10, 2011, in the United States District Court for the Middle District of Pennsylvania, alleges that the EPA: (i) issued an unsupported and unjustified TMDL pollutant load, as such the final TMDL is "arbitrary and capricious," in violation of section 706 of Administrative Procedure Act (APA); (ii) failed to provide meaningful opportunity for comment as mandated by section 553 of the (APA); (iii) violated its own implementing regulations; and, (iv) exceeded its statutory authority under the Clean Water Act.

The outcome of the litigation and the timeframe for decision are unknown, although two points are perfectly clear. First, Congress' failure to adopt S. 1816, which would have put the force of law behind the EPA's ruling, left the door open to challenge the EPA's rule. Second, neither party appears ready or willing to concede any ground. Bob Stallman, president of AFBF, declared the "EPA's 'diet' for the Chesapeake" is both "dangerous and unlawful" and indicated that AFBF will work to "maintain state primacy regarding implementation of TMDLs and land use planning." Ultimately, the court's solution will satisfy some and concern others, but for now all we have is anticipation and speculation.

Sources

AFBF Lawsuit Challenges Chesapeake Water Rules, FBNews, Jan. 24, 2011, at 1.

AFBF Outlines Top Policy Priorities for 2011, FBNews, Jan. 24, 2011, at 3.

Complaint at 40–43, Am. Farm Bureau Fed'n v. U.S. Envt'l. Prot. Agency, No. 1:11-cv-00067-SHR, (filed M.D. PA filed Jan. 10, 2011).

Chesapeake Clean Water and Ecosystem Restoration Act, S. 1816, 111th Cong. (2010).

David Sternberg, EPA Establishes Landmark Chesapeake Bay "Pollution Diet," (Dec. 29, 2010), available at http://yosemite.epa.gov/opa/admpress.nsf/90829d899627a1d98525735900400c2b/c15f64f4d172edff852578080061fa30!OpenDocument.