United States Supreme Court to Consider Whether to Hear Challenge to Chesapeake Bay TMDL

The United States Supreme Court is scheduled to meet in conference on February 26, 2016 to consider whether it will hear a number of cases appealed to the Court. One of the cases reportedly to be discussed at the conference is the much publicized challenge to the Chesapeake Bay TMDL. (The case was originally scheduled for the Supreme Court’s February 19, 2016 conference; however, that conference was postponed due to the passing of Justice Antonin Scalia.) The Chesapeake Bay TMDL was developed by the United States Environmental Protection Agency (“EPA”) to address phosphorus, nitrogen and sediment pollution in the Chesapeake Bay, and is considered to be the largest and most complex TMDL ever developed by EPA. In an earlier post, I discussed the Petition for Certiorari (“Petition”) filed with the Supreme Court by the American Farm Bureau Federation (“AFBF”), in which the AFBF sought review of the Third Circuit Court of Appeals’ opinion upholding a lower court decision rejecting a challenge by the AFBF and others to the Chesapeake Bay TMDL, more specifically, EPA’s legal authority under the Clean Water Act to establish the Chesapeake Bay TMDL. Following the AFBF’s filing of the Petition, EPA, along with the Pennsylvania Municipal Authorities Association (“PMAA”) and the Chesapeake Bay Foundation, filed responses in opposition to the Petition with the Supreme Court. Raising various arguments, each of these entities requested that the Third Circuit decision remain in place and that the Supreme Court deny the Petition. In early February, 2016, the AFBF filed a reply to the aforementioned briefs in opposition to its Petition.

Under the rules of the Supreme Court, all briefs associated with a petition for certiorari, including any briefs in opposition, are distributed to the Court no less than fourteen days after briefs in opposition are filed. Here, the briefs in opposition were filed on January 19, 2106 and, on February 3, 2016, the Petition and briefs were distributed to the Court for consideration at its February 19, 2016 conference. Significantly, in order for the Supreme Court to accept a case, at least four justices must vote affirmatively to grant the petition for certiorari. Generally, the disposition of a petition for certiorari is announced on the Monday following the conference at which the petition for certiorari is discussed. Therefore, if the Supreme Court considers this case in its February 26, 2016 conference, a decision on whether the Court will hear the AFBF’s challenge to the Chesapeake Bay TMDL may come as early as February 29, 2016.

Steven Hann, East Region Solicitor for PMAA, argued the Chesapeake Bay TMDL case on behalf of PMAA before both the Third Circuit and the United States District Court for the Middle District of Pennsylvania, and filed a brief in opposition to the Petition with the United States Supreme Court.