AFBF to take battle to Supreme Court

Associate Editor

WASHINGTON (Sept. 29, 2015) — The American Farm Bureau Federation is readying to take its fight against federal Chesapeake Bay nutrient regulations to the nation’s highest court.
The federation has requested a time extension to ask the court to hear an appeal of its lawsuit, filed with the National Association of Homebuilders, that challenges pollution limits in Chesapeake Bay waters set by the Environmental Protection Agency.
The Farm Bureau has lost twice already — first in federal district court in 2010 and the Third Circuit Court of Appeals last year.
The federation’s extended filing deadline with the court is now Nov. 6, said Ellen Steen, the federation’s general counsel.
“If we weren’t prepared to take [the lawsuit] as far as we needed to take it to get the right result, we wouldn’t have pursued it in the first place,” she said. “Losing in the district court and the appellate court doesn’t necessarily mean it’s going to come out the same way in the Supreme Court.”
In0 the past, the federation has taken issue with the way the EPA sets limits on nitrogen, phosphorus and sediment in Bay waters for sources of those nutrients such as agriculture, forestry and urban runoff.
It has also said the federal agency’s standards are based on incorrect information supported by flawed computer models, and the public wasn’t allowed to weigh in on the changes.
Now, the federation’s case is focused on the way the EPA sets limits and even deadlines for sources such as agriculture — a violation of the federal Clean Water Act, Steen said.
The federation takes no issue with the EPA setting a total maximum daily load — or TMDL as it’s commonly known — that sets a limit on the amount of pollutant the Chesapeake Bay or a tributary can receive to keep it fishable and swimmable, she said, but it’s regulation of individual sources of that pollution such as wastewater treatment plants and confined animal feeding operations is excessive.
“That is something that Congress in our view of the statute left to the states,” Steen said. “Congress did not give the EPA the power to get involved at that level of micromanagement.”
Environmentalists have singled out the Eastern Shore’s poultry industry and its litter byproduct as a primary contributor to oversaturated nutrient levels in the Bay.
“Good for” the federation, said Bill Satterfield, executive director of the Delmarva Poultry Industry Inc., which is not involved in the lawsuit. “I don’t think our members would mind having a challenge in the Supreme Court. I’m sure many of our members are applauding the decision.”
The Chesapeake Bay Foundation harshly criticized the federation’s suit last week.
“As part of the Chesapeake Clean Water Blueprint, the states asked EPA to determine how much pollution must be reduced to restore local waterways and the Bay, and the states and District of Columbia each developed individual plans to achieve those reductions,” foundation President William C. Baker said, adding that the federation’s “argument that this is an EPA over-reach has been twice rejected by federal courts, and we will argue that the issues are settled, and there is no reason for the Supreme Court to hear this case.”