Virginia has filed a brief in support of the U.S. Environmental Protection Agency (EPA) in the legal battle with the American Farm Bureau Federation (AFBF) over setting pollution limits for the Chesapeake Bay. AFBF is currently appealing a district court decision that upheld EPA’s right to set pollution limits in the U.S. Court of Appeals for the Third Circuit in Philadelphia. State Attorney General Mark Herring filed an amicus brief to protect Virginia’s efforts to restore the Bay and the right of Virginia and other Bay states to work together to protect it.

At issue in the case is the EPA’s 2010 adoption, under the Clean Water Act, of a “pollution diet,” also called a Total Maximum Daily Load (TMDL,) based on watershed management plans developed by the states whose waters flow into the Bay. According to Virginia’s brief, it is “undisputed that the Bay TMDL details at issue…are creatures of the Bay States’ authority, with the states themselves creating and committing to individual plans, which were then incorporated by the EPA into the final TMDL blueprint.”

 In its lawsuit, AFBF maintained that EPA lacks the authority to allocate limits on levels of nitrogen, phosphorus, and other pollutants; that the public did not have an adequate opportunity to weigh in on the plan, and that EPA’s action usurped the rights of the states. The district court upheld the TMDL plan, noting that “that the procedures established to ensure public participation in the TMDL drafting process were sufficient” and “the framework established by the Bay Partnership in developing the Bay TMDL is consistent with the provisions of the Clean Water Act.”

The amicus brief from State Attorney General Mark Herring also refutes the arguments in a recently filed amicus brief from 21 state attorneys general that opposed the ability of Bay states and the EPA to work cooperatively to address the health of the Bay. “This case is simply about whether Virginia and the other Bay states have the authority to work cooperatively to manage and restore the Bay, as they have done for decades,” Herring said. “Each Bay state, including Virginia, voluntarily entered into the current Bay restoration plan because of the economic, recreational, environmental, and intrinsic value of a healthy Chesapeake Bay.”

Virginia is the first Bay state to defend the restoration plan in the case.