The Department of Justice and the Chesapeake Bay Foundation, in league with several other activist organizations, filed briefs Tuesday urging the nation’s highest court not to review the Environmental Protection Agency’s authority to impose a “total maximum daily load” on Bay states’ pollution of North America’s largest estuary.But why are 22 other states and farm organizations across the country opposing the law? It's the old "camel's nose" hypothesis, that given the freedom to regulate states when the states won't fall in line.
The filings came in response to petitions filed late last year by the American Farm Bureau Federation, 22 states and a bevy of business groups, challenging the EPA's role in the multi-jurisdictional Bay cleanup. They contend that the EPA has overstepped its legal authority in ordering curbs on polluted runoff, and that the cleanup plan will impose tens of billions of dollars in costs on local communities, causing economic harm. The farm bureau and its allies argue that Supreme Court action is needed to rein in a “power grab” by EPA that they contend could harm farmers, businesses and communities throughout the six-state watershed.
The challengers assert that the EPA has usurped the role of the states in ordering pollution reductions across the bay watershed, including from farms and urban areas, and by threatening to take “contingency actions” if the states don’t take the necessary actions by the deadlines federal regulators set. The lower court decisions upholding the bay TMDL conflict with other courts’ decisions that have limited EPA’s power to dictate pollution reductions, they add.Now, that is an interesting question. Can a state give away its sovereign rights to regulate its own land use away to the Federal government?
The government and environmental group lawyers counter that the Bay cleanup plan –the largest and most complex ever drawn up under the federal Clean Water Act – had been developed with the consent and cooperation of the states tasked with carrying it out.