AFBF requests Supreme Court to decide legality

Associate Editor

WASHINGTON — The American Farm Bureau Federation, along with several other agricultural and construction groups, has officially asked the U.S. Supreme Court to decide whether a federal government plan regarding nutrient regulations and the Chesapeake Bay is legal.
But will the court accept the case?
“My standard answer is it’s usually 50-50,” said Paul Goeringer, a University of Maryland Extension legal specialist.
Customarily, at least four of the court’s nine justices would need to vote to hear it, and the court usually only hears roughly 80 or so cases out of thousands of petitions it receives each year.
One fact potentially going against the Farm Bureau is that lower courts are not in disagreement over the issue, Goeringer said. Both the Middle District Court of Pennsylvania and the 3rd U.S. Circuit Court of Appeals have ruled against the Farm Bureau, backing the Environmental Protection Agency’s right to establish the Bay’s Total Maximum Daily Load, which regulates the amount of nitrogen, phosphorous and sediment that can enter the Bay and waters that lead into it.
The regulation was created in 2010 and requires Bay watershed states to develop plans to meet pollution reduction goals by 2025. Many of those plans have restricted what farmers can do on their farmland when it deals with nutrients and soil such as fertilizer and manure application.
The Third Circuit most recently sided with the EPA in July when a three-judge panel ruled the federal agency acted within its authority from the Clean Water Act to set pollution limits for the Bay. The Farm Bureau believes the EPA is overreaching.
“It’s about whether the EPA has the power to override local decisions on what land can be farmed, where homes can be built and where schools, hospitals, roads and communities can be developed,” Farm Bureau President Bob Stallman said in a statement. “This is nothing less than federal super-zoning authority. As much as we all support the goal of achieving a healthy Chesapeake Bay, we have to fight this particular process for getting there.”
William C. Baker, president of The Chesapeake Bay Foundation, a Bay advocacy group, called the Farm Bureau’s petition “predictable and sad” and said he hoped the court would deny the request.
“The agriculture and development industries need to accept that the (regulations are) the best hope for restoring water quality in local rivers, streams and the Chesapeake Bay,” he said in a statement. “Their continued reluctance in the face of overwhelming public support stands in stark contrast to the efforts of thousands of farmers and homeowners who have taken action, many at their own expense, to move the Bay clean-up efforts forward.”
The EPA also faced a separate challenge last week when the U.S. Senate voted to kill restrictions designed to keep small streams, wetlands and some ponds safe from pollution and development. As of press time, Senate Democrats had successfully blocked the challenge.
When asked what he thought about the Farm Bureau’s argument that the regulations represented illegal federal land use regulations, Goeringer said: “I think that’s unique. I still haven’t figured out how that’s a winning argument.”
The Farm Bureau’s petition was filed Nov. 6, and the court will likely make a decision on the case next year.