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Fertilizer runoff and other activities have 60 percent of Chesapeake Bay in a virtual dead zone. Chesapeake Bay Program, CC BY-NC

Supreme Court sides with EPA on cleaning Chesapeake Bay – and perhaps other waterways

In one of the earliest signs of how a divided Supreme Court will deal with environmental cases in the post-Scalia era, the court on February 29 handed the Environmental Protection Agency (EPA) a victory over farming interests in a multistate effort to restore the Chesapeake Bay.

The court declined to hear the case filed by industry group the American Farm Bureau Federation, which was joined by 22 states, which challenged the EPA’s plan to clean up the Chesapeake Bay’s waters.

The case not only reflects how a split post-Scalia court could operate in the months ahead but also raises the question as to whether the EPA could move to clean other polluted, multistate waterways.

Tough times for the Chesapeake

The Chesapeake Bay is the largest estuary in the U.S. and was once one of the most productive fisheries in the world. Today, however, it is choking to death from polluted runoff containing excessive amounts of sediment, nitrogen and phosphorous. Over 60 percent of the bay is a virtual dead zone with insufficient oxygen to support aquatic life.

The largest source of pollution to the Chesapeake Bay comes from agricultural runoff, which contributes roughly 40 percent of the nitrogen and 50 percent of the phosphorus entering the water.

EPA’s plan, called the Chesapeake Bay Clean Water Blueprint, establishes a “total maximum daily load” (TMDL) for how much nitrogen, phosphorus and sediment can enter the bay each year.

A TMDL is essentially a pollution diet – how much of a given pollutant a water body can absorb before violating water quality standards designed to protect aquatic life and various economic and recreational uses.

The goal of the Bay Blueprint is to cut this pollution by 20-25 percent by 2025. A peer-reviewed report published by the conservation group the Chesapeake Bay Foundation last October found that, in addition to the environmental benefits of the TMDL, the cleanup plan would also result in billions of dollars in economic benefits for the region from protecting property from flooding, recreation, and more productive farms and waters.

‘Enough play in the joints’

A central issue in the case turned on the meaning of the word “total” in TMDL. This is the kind of issue the late Justice Scalia would have relished.

Channeling Scalia’s “textualist” approach to statutory interpretation, the Farm Bureau argued before a lower court that a TMDL is nothing more than a number – so many parts per million of this or that pollutant – covering the entire Chesapeake Bay, rather than a mandate to actually address the causes of the pollution.

EPA, on the other hand, took the position that Congress intended the TMDL to be more than a calculator; that it actually intended it to be used as a tool to tie together pollution issues in a manner that addresses the whole health of the water.

Accordingly, EPA developed a plan that allocated responsibility for pollution reduction among various sectors, set timetables for action and provided market-based options for states to use if they wished. It established an ongoing collaborative process to address problems as they arose and required states provide “reasonable assurances” that the targets would be achieved and water quality would eventually be restored.

The case went to the Third Circuit Court of Appeals which upheld EPA’s approach as a valid exercise of the discretion Congress had given it.

The Third Circuit found that Congress had left a gap for EPA to fill in regulating clean water. It noted that the Clean Water Act supports the idea that TMDLs need to account for pollution from specific point and nonpoint sources, such as rainfall. But the law is silent on how to do it, leaving EPA with room to flesh out some of the details on how to allocate reductions among a number of states and watersheds.

The court then analyzed EPA’s approach and found it consistent with the act’s structure and purpose, and with the “cooperative federalism” principles embodied in the law.

The court rejected the Farm Bureau’s crabbed interpretation reasoning that:

Preventing the EPA from expressing allocations and timelines and from obtaining reasonable assurance from affected states appears to frustrate [statutory] goals, and thus the phrase “total maximum daily load” has enough play in the joints to allow the EPA to consider and express these factors in its final action.

In the circuit court argument, the Farm Bureau assailed EPA’s approach, calling it a “power grab” with ominous implications for usurping state land use authority across the nation.

In fact, however, it was the six basin states that asked EPA to step in and create the blueprint to overcome the lack of progress on cleanup over the past three decades and find a way forward. Indeed, the only states opposed to the plan were from outside the basin.

The Third Circuit dismissed the Farm Bureau’s alarmist argument with the comment: “The challenge is long on swagger but short on specificity.”

In court the Farm Bureau trotted out the familiar argument that “voluntary compliance” approaches would produce superior result if EPA just stayed out of it.

However the court made short shrift of this argument as well, saying “Although Farm Bureau claims that the Chesapeake Bay will be cleaned up without EPA intervention, the contention defies common sense and experience.”

If the Chesapeake Bay is to be restored, changes in land use, such as installing stormwater controls, maintaining buffer strips along streams, reducing the application of fertilizers, improving manure management and using cover crops to control runoff will surely be required. But it is up to the states, not EPA, to implement the specific measures required. The blueprint relies more on cooperation than coercion to succeed.

Precedent setting

The states that joined the Farm Bureau have expressed the concern that the Chesapeake Blueprint could become the model for addressing agricultural pollution across the country. If so, that would be a very good thing, in my view.

According to the 2004 National Water Quality Inventory Report to the U.S. Congress, agriculture is the leading cause of impairment of rivers, lakes and estuaries everywhere in the country, including large farms around the Mississippi.

Activities that contribute to water pollution include confined animal facilities, grazing, plowing, pesticide spraying, irrigation, fertilizing, planting and harvesting. The major agricultural pollutants that result from these activities are sediment, nutrients, pathogens, pesticides and salts. Agricultural activities also can damage habitat and stream channels.

Agriculture and ranching interests opposed the EPA’s plan to restore the Chesapeake Bay over worries the agency will use the Clean Water Act to try to clean other waterways. agrilifetoday/flickr, CC BY-NC-ND

Agricultural sources in the Mississippi River Basin are estimated to contribute about 65 percent of the nitrogen loads creating the Dead Zone in the Gulf of Mexico.

The Dead Zone fluctuates in size each year, extending a record 8,500 square miles during the summer of 2002 and stretching over 6,450 square miles – an area about the size of Connecticut and Rhode Island combined – during the summer of 2015.

Pesticides are another major source of impairment. According to the U.S. Geological Survey’s National Water Quality Assessment (NAWQA) Program, more than 90 percent of water and fish tissue samples from all streams sampled contained one or more pesticides.

Farms are also contaminating public water supplies. The City of Des Moines Water Works recently filed suit against farmers in three Iowa counties as a result of nitrate contamination that has forced the city to build the largest denitrification facility in the world to lower nitrogen levels.

All of these pollutants in our waterways have a cost. The decline of the Chesapeake oyster and its fishery – which were once called “Chesapeake gold” because of their profitability – has cost Virginia and Maryland more than US$4 billion in losses in the past 30 years, In addition, farmers and owners of farmland receive direct subsidies to the tune of $10 billion to $30 billion each year, as well as billions in indirect subsides, such as crop insurance.

Given all of this public support, one would think the Farm Bureau would focus more on ways to reduce agricultural pollution of public waters than on lawsuits challenging EPA’s efforts to abate it. Instead, in a statement, the Farm Bureau indicated it will continue to fight similar regulations: “This lawsuit has ended, but the larger battle over the scope of EPA’s power is not over.”

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