By Neil Saunders
Earlier this month, the Court of Appeals for the Third Circuit upheld the legality of the Chesapeake Bay TMDL, securing the EPA and Bay States’ authority to continue with implementation of the Bay TMDL throughout the Chesapeake Bay watershed. This long awaited decision- oral arguments were held in November 2014- is huge news for the Bay community.
The case involved a challenge to the Bay TMDL from within the agricultural community and the governments of 21 states. At issue in this case was the statutory interpretation of the term “total maximum daily load” as used under the Clean Water Act. A total maximum daily load (or “TMDL”) is a document created whenever a waterbody is classified as “impaired” under the Clean Water Act. The document identifies the amounts of various pollutants that can be safely absorbed by that waterbody. The Bay TMDL, in particular, is one of the most detailed and comprehensive TMDLs that the EPA has written.
The challengers argued that use of the word “total” meant that the EPA could only prescribe a single, total amount of a pollutant that a waterbody could healthily absorb, and that, therefore, the EPA exceeded its authority when it created the Bay TMDL with the level of specificity it contains and the various accountability mechanisms it enforces. The Bay TMDL includes, in addition to totals of pollutants, timelines for compliance, requirements that the Bay States provide reasonable assurances that certain practices will be implemented on time, and “backstop” measures which the EPA will enforce if states do not remain on track. The challengers maintained that the EPA went beyond its authority, and that such authority belongs to the states. The EPA and other environmental organizations supporting the Bay TMDL countered that the EPA’s interpretation is a lawful exercise of its delegated authority.
In its decision the court found in favor of the EPA on all points, relying on a judicial doctrine commonly known as Chevron deference (after the seminal 1972 Supreme Court case Chevron v. Natural Resources Defense Council). That doctrine states that where Congress delegates an agency to implement a law, and Congress’s intent is unclear as to a provision of that law, a court must give deference to the agency’s lawful interpretation, so long as that interpretation is reasonable. In other words, if a statute is ambiguous an agency may apply its own interpretation as long as it is a reasonable one. In this case, the court held that the Clean Water Act does not define the phrase “total maximum daily load,” and that “[e]stablishing a comprehensive, watershed-wide TMDL—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented—is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute.” (Court’s decision pp. 59-60).
The court also addressed broader concerns about this case, namely the balance of power between the Federal and state governments. This case carries significance outside the Bay area because the EPA is likely to begin a similar TMDL process for other large watersheds in the country, such as the Mississippi River. It is because of this that so many state governments intervened in this case to challenge the Bay TMDL. But as the court acknowledged in its conclusion, “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.” (Court’s decision p. 60). This are powerful words coming from a Court of Appeals, and provide an sense of optimism as the Bay States gear up for Phase III of the Bay TMDL in 2017.
This case was an appeal from a 2013 decision in which the lower federal district court initially upheld the legality of the Bay TMDL.