Maryland is joining three other jurisdictions in supporting 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 and its allies, including the U.S. Poultry and Egg Association, are currently appealing a district court decision that upheld EPA’s right to set pollution limits. The case is before the 3rd U.S. Circuit Court of Appeals in Philadelphia.
At issue is a federal-led effort to restore the 64,000-square-mile Chesapeake watershed by 2025. In 2009, President Obama issued an executive order for restoration of the Chesapeake Bay, prompting the EPA to seek agreements with six states and the District of Columbia to set standards to reduce nitrogen, phosphorus, and sediment.
In its challenge, AFBF maintains 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; that EPA’s actions usurped the rights of the states, and leaves an open path for EPA to take similar actions to assign pollution caps across other watersheds, including potentially the entire Mississippi River Basin. American Farm Bureau Federation President Bob Stallman has called the EPA action “a remarkable power grab.”
The last of the legal briefs in the case were submitted on Monday. Maryland Attorney General Douglas Gansler argues that the cleanup is making progress and should not be derailed by outside states with no interest in the Chesapeake Bay and its watershed. Signing onto his brief are Delaware and the District of Columbia. In April, Virginia submitted a separate brief in support of EPA. That means four of the seven bay jurisdictions who consented to the EPA cleanup in 2010 are now defending the plan in court.
Among the other states that agreed to the Chesapeake plan, West Virginia is now opposing the cleanup, joining 20 other states that previously filed an amicus brief from state attorneys general that opposed the ability of Bay states and the EPA to work cooperatively to address the health of the Bay. Besides West Virginia, the 20 states that oppose the Chesapeake plan include Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
Pennsylvania and New York–states that have big pieces of the Chesapeake watershed–are staying silent in the litigation.
Oral arguments are expected this summer, with a ruling afterward.
