Supreme Court Refuses To Take Up Case Challenging The Cleanup Of The Chesapeake Bay

Mar 1, 2016 by

CREDIT: AP Photo/Alex Dominguez

Debris floats in the Chesapeake Bay north of the Bay Bridge on Monday, Sept. 12, 2011 in Sandy Point State Park, Md.

The Chesapeake Bay can forge ahead with its much-needed cleanup plan, after the Supreme Court decided Monday that it wouldn’t be taking up a case challenging the rule.

The court’s decision not to take up the case, brought by the American Farm Bureau Federation and other agriculture and business interests, means that a lower court’s decision last July, which found that the effort is legal, stands. The cleanup effort, called the Chesapeake Bay Clean Water Blueprint sets a Total Maximum Daily Load (TMDL) for how much nitrogen, phosphorus, and sediment pollution can enter the bay. Under the TMDL, these forms of pollution would be cut by 20 to 25 percent.

The decision not to take up the case was made by an eight-member court, as Justice Antonin Scalia passed away earlier this year. Tim Henderson, a partner at a Maryland-based law firm, told the Capital Gazette that, had Scalia been alive for the decision, the court may have taken up the case — it was “the kind of issue he was inclined to take,” he said.

Environmental groups applauded the court’s decision.

“For five years we have fought in the courts to defend a commonsense solution to reducing pollution, a solution borne of a cooperative relationship between the states, the federal government, and the citizens of the Bay Region. Today, that fight has ended,” Chesapeake Bay Foundation Vice President for Litigation Jon Mueller said in a statement. “Now, we can all lay down the law books and focus on the hard work of restoring the Bay to a healthy and vibrant state.”

The Chesapeake Bay Foundation and other groups have been champions of TMDL, calling it a long-overdue response to the pollution that’s plagued the bay for years. But farm groups haven’t been so supportive. Agriculture is the largest contributor of nutrient and sediment pollution to the Chesapeake Bay — the industry was responsible for 42 percent of the nitrogen, 58 percent of the phosphorous, and 58 percent of the sediment that entered the bay in 2012. So, unsurprisingly, major agriculture groups were quick to sue when the EPA first unveiled the plan in 2010.

The legal attempts to block the rule haven’t been successful — the Third Circuit Court of Appeals ruled upheld a lower court’s decision that the EPA’s cleanup effort was legal.

“Congress made a judgement in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution,” the court wrote in its opinion. “The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay…a goal our elected representatives have repeatedly endorsed.”

The Farm Bureau wasn’t satisfied by that ruling, however, and decided to take the case to the Supreme Court in November of last year.

Attorneys General from states as far away as Alaska and Wyoming have joined the opposition to the rule. These states are concerned that, if the bay’s TMDL is left to stand, a similar pollution diet could be put in place for agriculture-rich states along the Mississippi River. The EPA’s plan, many of them think, amounts to federal overreach.

“The issue is whether the EPA can expand its authority under the Clean Water Act to micromanage how states meet federal water-quality standards,” Kansas Attorney General Derek Schmidt said in a statement in December. “Ultimately, this is about whether a federal agency has the authority to upend state and local economies by telling states – and ultimately landowners – how to use their land and natural resources. We believe the EPA has exceeded its authority and our nation’s highest court should be the one to ultimately decide this case.”

But the courts haven’t agreed, and now it appears the cleanup plan is safe from future attacks.

“We applaud the Court’s decision to let the lower courts’ affirmation of the Chesapeake Bay Blueprint stand,” National Wildlife Federation President and CEO Collin O’Mara said in a statement. “Today is a great day for the Chesapeake’s fish, crabs, and other wildlife. Now it is time for all parties to the lawsuit to come together, roll up their sleeves, and work collaboratively to restore the Bay.”

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