As the Environmental Protection Agency (EPA) Clean Power Plan litigation takes center stage, another major case involving cooperative federalism—or, perhaps more accurately stated, another case involving a dispute as to what constitutes cooperative federalism—is on the doorstep of the U.S. Supreme Court. In a Petition for Writ of Certiorari filed in November, 2015, the American Farm Bureau Federation and other petitioners asked the Supreme Court to review the decision of the U.S. Court of Appeals for the Third Circuit upholding the Chesapeake Bay TMDL (Total Maximum Daily Load) promulgated by EPA pursuant to the federal Clean Water Act (CWA). The Petition for Certiorari argues that “EPA’s power grab has distorted the federal-state balance that Congress sought to preserve in the CWA.” Respondents, in their January 19, 2016 briefs in opposition, stress that the Chesapeake Bay TMDL was not imposed on the Bay states by EPA, but was instead negotiated and supported by those states.
Interestingly, the outcome of the TMDL litigation, if the Supreme Court grants certiorari, will be closely evaluated for its potential bearing on the Supreme Court’s almost-certain, coming consideration of the Clean Power Plan (presently being litigated in the U.S. Court of Appeals for the District of Columbia Circuit, and the subject of the widely publicized stay order issued on February 9, 2016, by the Supreme Court). Although the Third Circuit ruled in favor of EPA and the Bay states in the TMDL litigation, and rejected the assertion that the TMDL had altered the federal-state balance, it said that it might “reach a different result if the TMDL in fact made land-use decisions diminishing state authority in a significant way.” On the record before it, the Third Circuit found that the claims of diminished state authority were “long on swagger but short on specificity.” In the Clean Power Plan litigation, an overarching question is whether EPA has established a scheme giving it effective power to dictate such land use decisions (at least those that produce greenhouse gases). In the TMDL litigation, the Third Circuit noted that “the TMDL nowhere prescribes any particular means of pollution reduction to any individual point or nonpoint source,” but instead “contains pollution limits and allocations to be used as an informational tool used in connection with a state’s efforts to regulate water pollution.” Will the D.C. Circuit view the Clean Power Plan as being equally deferential to the states, or will it see that plan as an actual, unauthorized “power grab” by the federal government? How will its reasoning affect the Supreme Court’s review? It will be fascinating litigation to follow.