February 29, 2016

Certiorari denied in American Farm Bureau v. EPA

By Certiorari denied in American Farm Bureau v. EPA

American Farm Bureau v. EPA (15-599), a petition for certiorari which PLF supported as amicus curiae, was denied this morning.  The denial leaves the Third Circuit opinion in place, an opinion which stands as a shining example of judicial abdication via Chevron.

The Third Circuit accepted, for example, EPA’s reading of the word “total” as used in the Clean Water Act statutory term “total maximum daily load” to mean not just a bottom-line sum of allowable pollution, but also an allocation of that sum’s constituent elements.   As the Farm Bureau pointed out, this twisted concept of the word “total” makes no sense: “The ‘total’ of 6 and 4 is not 6 and 4; it is 10. That is an important difference, because someone asked to identify the best allocation of the number 10 between two constituent parts might say 7 and 3, or 8 and 2, rather than 6 and 4.” 

Under the Clean Water Act, the states are supposed to identify the best allocation of the sum of permissible pollution among various land uses, according to the preferences of the people of the relevant states.  Allowing an interpretation of the word “total” that somehow entails its own opposite (a distribution of the sum’s constituent parts) takes that function from the people and gives it to an unaccountable federal bureaucracy.

The end result of the EPA’s and the Third Circuit’s creative logic is a new federal power to micromanage land use within a watershed by creating “comprehensive” TMDLs under the Clean Water Act—a power seemingly precluded by the Act’s own terms.  Unfortunately, the denial of certiorari this morning means that, for the foreseeable future, the citizens and farmers of the Chesapeake Bay watershed are stuck with an expensive, unresponsive federal land-use plan that picks winners and losers among the Bay watershed’s industries and its users of natural resources.

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