B'More Green

Supreme Court declines to hear case challenging Chesapeake Bay 'pollution diet'

The Supreme Court has declined to hear a case challenging Chesapeake Bay cleanup efforts.

The Supreme Court said Monday it would not hear a challenge to the "pollution diet" set for the Chesapeake Bay, in effect upholding the blueprint for a substantial cleanup by 2025.

The American Farm Bureau Federation and its allies said the federal Environmental Protection Agency had overstepped its authority in establishing the plan to limit nutrient and sediment runoff across the bay watershed. But a federal appeals court sided with the EPA last year, and with the high court's refusal to take the matter up, that ruling will stand.

The decision could strengthen efforts to impose similar water quality improvement plans across the country. Agriculture and business groups say they fear it could set a precedent that gives the EPA extensive power over state and local land use.

In Maryland and across the six-state bay watershed, proponents said the decision could speed progress toward goals to reduce the amount of fertilizer, animal waste and wastewater that enters the Chesapeake.

"Now that all of the legal challenges have been denied, we hope those who have opposed the Chesapeake Clean Water Blueprint will devote their time, expertise, and money to working with all of the clean water partners to help Save the Bay," William C. Baker, president of the Chesapeake Bay Foundation, said in a statement.

Maryland Environment Secretary Ben Grumbles called the decision "good news for the Bay and our pollution prevention efforts upstream." He said it could help spread innovative partnerships, programs and financing arrangements to cut pollution throughout the bay watershed.

Farming advocates expressed disappointment and warned that limits on use of fertilizers and animal waste could devastate the agriculture industry.

"This could be a major hardship," said Mark O'Neill, a spokesman for the Pennsylvania Farm Bureau. "This could have a major impact on the future of farming in the watershed."

The Pennsylvania bureau joined the American Farm Bureau Federation, several other agricultural groups and the National Association of Home Builders in challenging the EPA program. Officials with the national farm bureau and the home builders group did not respond Monday to requests for comment. Maryland Farm Bureau officials declined to comment.

In 2010, the EPA set a "total maximum daily load" of nutrients and sediment permitted to wash into the Chesapeake.

The plan sets goals of reducing nitrogen runoff by 25 percent, phosphorus by 24 percent and sediment by 20 percent by 2025, with an interim goal of achieving 60 percent of the reductions by next year.

Chemicals such as nitrogen and phosphorus, which run off of farmland into the bay, fertilize algae blooms that, when they decompose, create oxygen-bereft dead zones in the water. Algae blooms and sediment can block sunlight from reaching underwater grasses that create habitats for fish and shellfish.

Improvements in wastewater management have put Maryland on track to meet 2017 interim goals, but more drastic action in agriculture and other areas is required to meet the 2025 marks, the Center for Progressive Reform reported in February.

Virginia, Delaware and West Virginia have also shown progress and could meet 2017 goals, according to the center, a network of academics from across the country, but Pennsylvania and New York are failing to make necessary pollution reductions.

The farm bureaus and other plaintiffs sued the EPA soon after the agency issued the pollution guidelines, and federal courts twice sided against them.

The 3rd U.S. Circuit Court of Appeals in Philadelphia upheld in July a lower-court ruling that the EPA's actions fell within the letter of the Clean Water Act.

The plaintiffs petitioned the Supreme Court in November. They argued that the EPA plan means that the agency, "rather than the States, gets to decide how the burdens of achieving water quality goals are shared among land uses like farming, construction, and forestry."

The Clean Water Act gives states authority over such matters, the groups argued, because they "are better attuned to local economic and social needs."

They attracted the support of the attorneys general of 22 states and business groups. The U.S. Chamber of Commerce wrote in a friend-of-the-court brief that the EPA had given itself "significant power over land use decisions affecting local businesses throughout the nation."

In declining to hear the case, Supreme Court justices let stand the appeals court judges' opinion that federal law allowed EPA and states to work together to "best allocate the benefits and burdens of lowering pollution."

The case was among hundreds the high court declined to hear as it moves forward as an eight-member body without Associate Justice Antonin Scalia, who died Feb. 13. President Barack Obama plans to nominate a replacement, but Senate Republicans say the choice should go to the next president.

Rena Steinzor, a law professor at the University of Maryland and a contributor to the Center for Progressive Reform, said Scalia's death could have played a role in the outcome.

After the high court temporarily blocked the EPA from imposing new limits on greenhouse gas emissions Feb. 9, she said, supporters of the bay plan feared what might happen if the justices took up that case.

"We were on tenterhooks about it," Steinzor said.

With the legal challenge settled, environmentalists hope to work more closely with farmers, builders and others who question the pollution limits and hold the power to meet them, said Ann Swanson, executive director of the Chesapeake Bay Commission.

The commission, an interstate agency, advises the legislatures of Maryland, Virginia and Pennsylvania on bay issues.

"It's imperative all sides come to the table to craft the best solution," she said.

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