States Pick Sides over "Bay Diet"

In Fight for Pollution Limits, The Lines are Drawn

The battle lines have been drawn in the fight to defend the Chesapeake Bay pollution limits set by the EPA and the states’ plans to meet them. Having lost in federal district court, the Farm Bureau and its allies have appealed to the Third Circuit Court of Appeals in Philadelphia. Attorneys general from 21 states — none of which touch the Bay — have joined the bureau and its allies by filing a friend of the court brief in support.

Their key argument is that the plan is an EPA over-reach, which they say allows the EPA control over land use. They claim the EPA can now tell farmers where to farm and builders where to build.

Kansas Attorney General Derek Schmidt said in a statement, “The issue is whether EPA can reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards. We think the clear answer is ‘no,’ and we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin.”

Sort of a "First they came for the communists . . ." argument.  But it seems to me that under the doctrine of federalism the various states should be entitled to pick and choose how to meet the water quality criteria standards.  In the "Bay Diet" approach, being imposed on the Chesapeake Bay States, the EPA is not only telling the states how much to cut, but, in at least general terms, how they have to do it. And, by and large, with lots of grumbling from the various interest groups affected, the Bay states are going along with EPA.  How did that happen?

A little background. After years of failed agreements and several lawsuits to clean up the Chesapeake Bay and the rivers and streams that feed it, the Bay states worked closely with the EPA to develop this plan, which many call the Chesapeake Bay Clean Water Blueprint.
The pollution limits set the maximum pollution that rivers and the Bay can withstand and still be healthy. The states then worked with the EPA to assess how much pollution each state needs to reduce.

Knowing the numbers of pounds of nitrogen, phosphorus and sediment pollution that needed to be reduced to meet the goal, each state developed its own plan for how it could achieve the reductions. The choices were made by the states, based on how each state thought the reductions could best be achieved. The pounds that each state must reduce were determined using sophisticated watershed models and information provided by the states. Because the states had attempted to meet similar reduction goals at least two different times and failed, the states and the EPA agreed that the states would need to provide reasonable assurances that they could succeed.

Virginia’s Attorney General Mark Herring has also weighed in with a friend of the court brief, called an amicus brief, supporting the EPA. He said, “When the most promising plan to protect and restore the Bay comes under attack, I am going to stand up for the health of Virginia’s families, for Virginia’s economic interests, for Virginia’s efforts to restore the Chesapeake Bay. Each Bay state, including Virginia, voluntarily entered into the current Bay restoration plan because of the economic, recreational, environmental and intrinsic value of a healthy Chesapeake Bay.”

Is the failure of the Bay states to do it right the first two times justify doing it the wrong way (assuming it is a violation of the federalism and the text of the Clean Water Act), even if the states consent?

And would that set a bad precedent for the other states?  It's pretty clear that if they get their way in the Chesapeake, EPAs next target will be the Mississippi drainage, bread basket of the world. What if the state there aren't as friendly.  I doubt that Montana has any more emotional investment in the Gulf of Mexico than Pennsylvania has in Chesapeake Bay.