December 11, 2015

PLF and forestry groups file brief in support of Farm Bureau cert. petition

By PLF and forestry groups file brief in support of Farm Bureau cert. petition

On Wednesday, PLF and a group of forestry organizations filed a brief urging the U.S. Supreme Court to grant certiorari in American Farm Bureau Federation v. EPA (15-599), an important case about the federal-state balance of power in the Clean Water Act.

The Clean Water Act is clear about its intended effect on the states: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” A prime example of the “cooperative federalism” model of regulation, the Clean Water Act combines the efforts and respective institutional advantages of the state and federal governments to tackle the tough issue of regulating water quality. Cooperative federalism and the Clean Water Act certainly have their flaws, but for its part, the Act at least tries to maintain some semblance to our constitutional federalism by reserving large portions of the Act’s administration to state governments. One of the areas to which the Act is especially sensitive is the regulation of diffuse or “nonpoint” pollution sources. These are sources of pollution like agricultural and stormwater runoff that don’t enter water bodies from “point sources” like pipes and conduits and, thus, can only be effectively restricted by regulating how the land surrounding a body of water is used. To keep the federal government out of local land use planning—which is recognized as being among the most essentially local of government decisions—the Clean Water Act leaves regulation of nonpoint pollution entirely to the states.

Unfortunately, it takes more than clear Congressional intent and the practical good sense of federalism to keep EPA from asserting its regulatory omnipotence. This time around, EPA is trying to expand its regulatory authority by expansively interpreting its authority to establish a “total maximum daily load” or TMDL. TMDLs are statutory devices in the Clean Water Act that describe the maximum amount of a pollutant that a water body can safely handle per day and still meet its water quality standards. In a sense, TMDLs set goal levels of pollution for bodies of water that states have to work toward by prioritizing among and reducing certain uses of land and water resources, while also considering the needs of local communities and industries.

While states have primary authority to establish a TMDL, EPA can step in if a state doesn’t adequately do so. That’s what EPA did in this case, except its largest-ever Chesapeake Bay TMDL goes far beyond establishing the maximum pollutant load for the water bodies that flow into the Chesapeake. The Chesapeake Bay TMDL sets those maximums and then takes it upon itself to decide, among other things, how much of the total pollution amount point sources and nonpoint sources get to use, respectively. It goes further, dividing up the pollutant load for nonpoint sources among different types of land use—in essence, dictating how the burden of water pollution reduction will fall on agriculture, forestry, cities, and other local land uses. Once a TMDL is set, it automatically becomes part of a state’s water pollution reduction plan, making TMDLs a convenient tool for forcing federal policy preferences into state land-use decisions—decisions Congress clearly and for good reason reserved to the states.

The American Farm Bureau Federation challenged EPA’s power grab in federal court, and has now petitioned the U.S. Supreme Court to hear its case. Pacific Legal Foundation, joined by the National Association of Forest Owners, Southeastern Lumber Manufacturers, Texas Forestry Association, North Carolina Forestry Association, Louisiana Forestry Association, and the Empire State Forest Products Association, filed a brief this week to support their petition and urge the Court to hear this important case.

Our brief points out that EPA’s new “comprehensive” interpretation of TMDL undermines the Clean Water Act’s entire regulatory framework by undoing, among others, Congress’s decision to reserve regulation of nonpoint source pollution solely to the states. We also argue that further centralization of the Act’s decisionmaking will have disastrous economic and political consequences for the communities and industries forced to bear the burdens of EPA’s mandates. Decentralized government is more responsive to local preferences and change, more democratically accountable to the people, and better able to generate innovative policies and solutions. EPA would sacrifice these benefits in the pursuit of even marginal improvement in water quality—and it will, unless the Court hears the case and stands up for federalism and the Act’s cooperative federalist structure.

The Clean Water Act may be far from perfect, but if the Court leaves EPA to its own (statutory) devices, it stands to get much, much worse.

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