In late January, American Farm Bureau Federation filed its long-awaited federal appeal seeking to overturn last fall's U.S. District Court ruling that upheld U.S. EPA's authority to enforce total maximum daily loads on the Chesapeake Bay watershed. Then in early February, 21 state attorney generals and eight counties joined Farm Bureau and other plaintiffs with a friend of the court briefs challenging EPA's authority over state authority.
The appeal to the U.S. Third Circuit Court of Appeals was filed by American Farm Bureau, National Association of Home Builders, National Corn Growers Association, National Pork Producers Council, Pennsylvania Farm Bureau, The Fertilizer Institute and the U.S. Poultry & Egg Association. But it's not just an environmental issue, suggests Kansas Attorney General Derek Schmidt.
It's the continuing tug-of-war between states and federal government over finding a balance of power. That's why Schmidt led the effort to file an amicus brief from attorney generals from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.
The clear-as-mud issue
Can EPA reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards?" says Schmidt. "We think the clear answer is 'no'. We'd prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin."
"Congress deliberately structured the Clean Water Act to involve states in the decision-making process when nonpoint source runoff is being regulated," he elaborates. "That's because runoff regulation inevitably implicates land use decisions and private property rights. Congress did not intend to centralize those decisions in Washington, D.C."