American Farm Bureau Seeks United States Supreme Court Review of Chesapeake Bay TMDL

In a previous post, I reported on the Third Circuit’s recent decision upholding the Chesapeake Bay TMDL against a challenge by various entities, including the American Farm Bureau Federation. The Chesapeake Bay TMDL is by far the largest and most complex TMDL ever developed in the United States. Published in 2010 by the United States Environmental Protection Agency (“EPA”), the Chesapeake Bay TMDL sets forth the maximum levels of phosphorus, nitrogen and sediment that can be discharged into the Chesapeake Bay, and allocates these loadings among various source sectors in the Chesapeake Bay watershed, such as wastewater treatment plants, agriculture and urban stormwater. The American Farm Bureau Federation, among others, challenged the TMDL in both the United States District Court and the Third Circuit, alleging that the Chesapeake Bay TMDL exceeded EPA’s authority under the Clean Water Act, in part, because EPA included in the TMDL allocations of allowable levels of phosphorus, nitrogen and sediment among the different types of sources of these pollutants. The American Farm Bureau Federation has filed a Petition for a Writ of Certiorari with the United States Supreme Court, asking the Supreme Court to review the Third Court’s decision. The United States Supreme Court only agrees to hear a small percentage of cases that are appealed to it, and the Court’s decision in this particular matter will no doubt be closely watched by interested parties both within and outside the Chesapeake Bay Watershed.

Steven Hann, East Region Solicitor for the Pennsylvania Municipal Authorities Association, argued this case on behalf of the Pennsylvania Municipal Authorities Association before both the Third Circuit and the United States District Court for the Middle District of Pennsylvania.