In a recent edition of our Energy, Environment and Resources Update, we discussed the then-pending petition for writ of certiorari from a decision of the U.S. Court of Appeals for the Third Circuit upholding the Chesapeake Bay TMDL (Total Maximum Daily Load). On February 29, 2016, the U.S. Supreme Court denied the petition. The Chesapeake Bay TMDL will now move into implementation mode, free from legal attack on EPA’s authority to issue it.
The TMDL requires substantial reductions in the amounts of nitrogen (25 percent), phosphorus (24 percent) and sediment (20 percent) that are annually released to the Chesapeake Bay watershed. A major tool to be employed in meeting these targets is the establishment and expansion of riparian buffers—areas of forest or grassland bordering streams and rivers in agricultural settings. Details are established through Watershed Implementation Plans for each of the six Bay states (i.e., Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia), as well as the District of Columbia. The Chesapeake Bay TMDL will likely be used as a model in other watersheds with impaired water quality related largely to agricultural activity.
Notably, the court’s decision to deny certiorari and thereby effectively endorse EPA’s authority to regulate wide-scale water pollution by working with multiple states in customizing plans to reduce pollution associated with an entire business sector (here, agriculture) occurred after the passing of Justice Antonin Scalia, but prior to the court’s consideration of EPA’s Clean Power Plan. The Clean Power Plan, like the Chesapeake Bay TMDL, represents a regulatory effort founded on “cooperative federalism” at a multi-state level and with major economic ramifications. Inasmuch as the court did not explain its thinking behind its denial of certiorari in the Chesapeake Bay TMDL litigation, it appears difficult to gauge the extent to which that thinking may carry over to the Clean Power Plan litigation. Of course, the makeup of the court may also be different by the time the Clean Power Plan (presently stayed per U.S. Supreme Court order) makes it to the court after adjudication by the U.S. Court of Appeals for the District of Columbia.