Agricultural law experts are debating the consequences of the U.S. Supreme Court’s recent decision not to review a lower court’s ruling in a Chesapeake Bay watershed case involving farm runoff.
Last year, the U.S. Court of Appeals for the Third Circuit ruled in American Farm Bureau Federation, et al. vs. the U.S. Environmental Protection Agency that the federal government had authority to regulate both point source and non-point source pollution, which includes farm runoff. The Supreme Court’s decision this week not to hear the case upholds the lower court’s decision.
“I’m not surprised. The Supreme Court doesn’t take a lot of cases,” said Roger McEown, professor of agricultural law and taxation at Washburn University School of Law in Topeka, Kansas, and tax director at CliftonLarsonAllen in West Des Moines, Iowa.
“The Supreme Court only takes the cases it feels are compelling, but in agriculture, of course, we think this is a compelling case,” McEown explained. “The decision not to hear the case creates a regulatory burden for the farmers in the Third Circuit and the potential for that to be applied in the rest of the country.”
The Third Circuit covers all of Pennsylvania, New Jersey, and Maryland, but the court case applies to all producers in the Chesapeake Bay watershed, which includes the three Third Circuit states as well as Maryland, Virginia, and part of New York.
The lawsuit in question involves the total maximum daily load (TMDL) rule, which the U.S. Environmental Protection Agency (EPA) published as part of the Clean Water Act.
Supreme Courts Will Not Hear WOTUS Case
Under the Clean Water Act, the federal government is responsible for regulating point source pollutants, and states are responsible for regulating non-point source pollutants. Point source pollutants stem from known discharge sources, such as smokestacks, ships, or pipelines, while non-point sources stem primarily from agricultural and other forms of runoff.
“EPA has achieved through the use of the TMDL what they could not achieve in the Clean Water Act, which is the regulation of non-point source pollutants,” said McEown. “It is likely the EPA will take the Third Circuit opinion and apply the principle elsewhere, which is the main concern from agriculture’s standpoint.”
Others have a different take.
“The Chesapeake Bay project is a unique situation, which might be why the Supreme Court refused to take it,” said Kristine Tidgren, staff attorney for Iowa State University Center for Agricultural Law and Taxation. “The states in the (Chesapeake) Bay (watershed) were not plaintiffs in the case. The states actually asked EPA to come in and set the limits.”
While the six Chesapeake Bay states continue to work with EPA to clean up the watershed, farm groups within the state have voiced opposition to allowing EPA to set the strategy of how TMDL will be calculated, which in this case includes regulating non-point sources of pollutants, explained Tidgren.
McEown noted that the issue of regulating non-point source pollutants could come up again, either in a different court case or through legislation that would limit or eliminate the EPA’s ability to regulate non-point source pollution like farm runoff.
Listen to Ellen Steen, general counsel at the American Farm Bureau Federation, discuss the case on AgriTalk.