Members of the U.S. Supreme Court are scheduled to meet privately Friday to decide whether they will take up a number of cases, including the American Farm Bureau Federation’s challenge to the Chesapeake Bay cleanup plan.
Their decision about whether the case raises sufficient constitutional issues to warrant a review by the court could come as early as Feb. 22.
But even if it takes up the matter, the odds of Farm Bureau prevailing may have decreased over the weekend with the death of Justice Antonin Scalia. The justice was often — though not always — a major critic of government regulation, and the Environmental Protection Agency.
He was funny about enforcing the Constitution and a laws as written, and not as liberals want them to be at any particular moment.
Farm Bureau contends that the EPA overstepped its authority when it established the Chesapeake Bay Total Maximum Daily Load, which set limits on the amount of nitrogen, phosphorus and sediment that can enter the Bay.
I think a pretty good case can be made that the EPA has seriously overstepped the bounds of federalism, regulating from on high what states should have the power to regulate for themselves. The fact that Bay states have been unwilling to take up that authority does not mean it defaults to the Feds.
If the Supreme Court were to agree to review the case, Farm Bureau would need five judges — without Scalia — to take their side. If the eight remaining justices split 4-4, the decision last July by the 3rd U.S. Circuit Court of Appeals remains in place.
He will be missed.
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