High court refuses to hear challenge to EPA’s Chesapeake Bay rule

The U.S. Supreme Court this week decided not to review a federal appeals court ruling upholding a U.S. Environmental Protection Agency plan to put the Chesapeake Bay and its 64,000-square-mile watershed on a “pollution diet.” The decision effectively ends legal action on EPA’s regulation setting so-called Total Maximum Daily Loads — the amount of pollutants, including otherwise unregulated farm and agricultural storm water runoff — for the bay.

NPPC in early November joined the American Farm Bureau Federation other agricultural groups and business organizations in petitioning the Supreme Court to review the decision of the U.S. Court of Appeals for the 3rd Circuit in Philadelphia to uphold a lower court ruling that EPA can set TMDLs for the bay to force states to meet federal water-quality standards. (Friend-of-the-court briefs in support of the petition were filed by 22 states and 92 members of Congress. EPA and environmental groups opposed it.)

NPPC, AFBF and the other groups argued that the Clean Water Act does not authorize EPA to set standards for states, the agency’s action was a violation of long-established federalism principles, the regulation was arbitrary and capricious and the TMDLs are based on flawed computer modeling. The TMDLs likely will cost taxpayers and farmers billions of dollars by the time the rule is fully implemented in 2025. The groups fear that the Chesapeake Bay TMDL program will be used as a model for regulating other waterways, including the Mississippi River, and could be used to limit the size of farms, force more burdensome and unnecessary regulations on farmers and restrict the application of manure to cropland. In their petition to the high court, the groups argued that the EPA TMDL rule “opens the door for a dramatic expansion of federal power.” 

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