On February 11, National Review declared “Obama’s power-mad agency claims jurisdiction over land and water use almost everywhere in the United States.” Articles have been written recently regarding whether the U.S. Supreme Court will decide to hear arguments regarding American Farm Bureau Federation v EPA, the TMDL case. On Feb. 19, 2016, the Supreme Court will determine if it will hear and take the case. (Justice Scalia’s death may alter this schedule.)
The case involves the Clean Water Act (CWA) and whether EPA can regulate pollutants from nonpoint sources, farms, washed into waters in the Chesapeake Bay watershed. Total Maximum Daily Loads (TMDLs) are at the heart of this case. EPA is attempting to assert federal authority over the Chesapeake Bay, its tributaries, drainage ditches, and all land on which rainfall will hit and migrate downstream. American Farm Bureau Federation (AFBF) has been fighting EPA’s expansion of its jurisdiction since January 2011. EPA was upheld by the 3rd Circuit U.S. Court of Appeals last July. The National Review article claims the Chesapeake TMDL “…will cost ‘tens of billions of dollars’ to implement.” It refers to a Maryland School of Public Policy study which estimated “…implementation costs across all jurisdictions in the range of $50 billion between 2010 and 2025 – but going perhaps as high as $80 billion.”
The article asserts “EPA’s plan to become, in effect, America’s land-planning czar is part of a pattern of aggressive overreach going to the outer limits of the law and beyond into lawlessness.”
In November, 2015, AFBF petitioned the U.S. Supreme Court accept its appeal challenging EPA’s allegedly lawless conduct. The AFBF petition asserts ”The Clean Water Act creates a federal permitting program for ‘point source’ discharges of pollution and non–regulatory, incentive based programs to address diffuse ‘non-point sources’ like farming.” AFBF writes that “In addition, to fixing total load limits for pollutants in the Bay, this TMDL establishes pollutant limits for individual sources and types of sources across the 64,000-square mile Bay watershed, sets deadlines for States to implement control measures for those sources and demands ‘reasonable assurances’ from States that the deadlines will be met, backed by federal sanctions.”
I have written on other occasions this case will have an enormous impact on tillage and animal agriculture. The reason is that EPA in the Chesapeake Bay TMDL is attempting to establish pollutant limits to individual farms and other non-point sources. EPA wants to take away the discretion of states’ and local governments’ authority to allocate pollutant limits among sources. Moreover, EPA is requiring the states to set deadlines to implement TMDL control measures and meet those limits. A Third Circuit Court of Appeals deferred to EPA’s judgment that the phrase “total maximum daily load” is an ambiguous definition and that TMDLs can encompass allocations among different sources in different geographic areas, target dates, control measures and reasonable assurances from states that the TMDLs will be met.
AFBF describes non-point source pollution as being “…unchanneled rainwater runoff from agriculture, forest operations, construction activities, or urban areas, which may contain pesticide or fertilizer residues or sediment….” The CWA clearly does not authorize EPA to regulate non-point source runoff from agriculture, yet this is exactly what EPA is attempting to do. If EPA wins, it will set nutrient and sediment loads for pollutants to be discharged from agricultural operations, forest lands, and construction activities within specified geographic areas. AFBF describes the impact clearly when it says “As a practical matter [EPA’s] power to set numeric limits for sediment and nutrients by source type within specified geographic area equals nothing short of the power to allow farming here, but not there; building here, but not there.” This is providing EPA the power of being the zoning authority in the United States. Land use decisions have always been the prerogative of states and their subdivisions. Should EPA win this case in the Supreme Court, land use decisions will now be made by EPA rather than by a local authority.
AFBF illustrates its point by quoting the state of New York which says if EPA’s TMDLs are applied it means “…that farms will go out of business in order for New York to meet its proposed allocation.” AFBF also tells the Court that EPA’s expansion of authority, if approved, will mean “…nearly a half a million acres will go out of agricultural production under Virginia’s implementation plan.”
Justice Scalia’s untimely death may have an enormous impact on agriculture because a 4/4 vote means EPA wins. And you may be forced out of farming!
(This article first ran in Farm Futures on February 16, 2016)