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Media Alerts - EPA Did Not Exceed Statutory Authority by Creating TMDL Framework for Chesapeake Bay - Third Circuit
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July 15, 2015
  EPA Did Not Exceed Statutory Authority by Creating TMDL Framework for Chesapeake Bay - Third Circuit
Area of Law: Clean Water Act, EPA

Issue Presented: Did the EPA exceed its authority by publishing a "total maximum daily load" framework for pollution reduction in the Chesapeake Bay where it included in the TMDL allocations of permissible levels of certain pollutants, target dates for reducing discharges, and sought assurance from affected states that they would comply with the TMDL's objectives?

Brief Summary:

The American Farm Bureau Federation, among other trade associations, sued the Environmental Protection Agency for creating a "total maximum daily load" framework within the Watershed Improvement Plan for the Chesapeake Bay. The Farm Bureau argued that the EPA exceeded its authority because congressional intent behind the Clean Water Act was unambiguous and the EPA's interpretation of the statute was contrary to that congressional intent. The Court reviewed the statutory background using the Chevron analysis to determine whether the EPA acted within its authority. First, the Court determined the TMDL regulation was ambiguous, thereby granting the EPA deference to implement and regulate additional framework. Second, the Court found that the EPA acted within the intent of the statute when interpreting TMDL regulations, as agencies are often given latitude when implementing reasonable policy choices. The district court's decision was affirmed.

Extended Summary:

Trade associations, with members affected by the EPA's total maximum daily load ("TMDL") comprehensive framework for pollution reduction, sued the EPA alleging that all aspects of TMDL exceeded the scope of its authority. The EPA and seven states - Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New York, and the District of Columbia (a "state" under the Clean Water Act) developed a plan to improve the quality of water in the Chesapeake Bay. The Clean Water Act of 1972 provides that states set a total maximum daily load, and then the EPA approves or disapproves it. If the EPA disapproves of the state's proposed TMDL, the EPA must create the TMDL framework itself. The Chesapeake Bay watershed jurisdictions agreed that they would not submit TMDLs so that the EPA would do so in the first instance.

As a part of Phase I, the EPA made adjustments to New York, Pennsylvania, and West Virginia's Watershed Improvement Plans, which were incorporated into the final Chesapeake Bay TMDL. The Farm Bureau asserted that the EPA exceeded its statutory authority by including deadlines and allocations in the TMDL and by requiring "reasonable assurance" from the states in drafting that document. The district court examined the EPA's interpretation of the TMDL regulations and determined that the EPA had deference to reasonably resolve any ambiguities in the statute, as Congress delegated broad regulatory authority to the EPA.

The case was analyzed using Chevron v. NRDC, 467 U.S. 837 (1984), which has two steps: (1) whether the intent of Congress is unambiguous and clearly expressed; and (2) whether the agency's interpretation is contrary to the statute.

The Court determined that the term "total maximum daily load" was ambiguous and noted that agencies like EPA have considerable power under complex statutory regimes. Based on the long history of the EPA and the Clean Water Act, the Court acknowledged Congress' intent to give the EPA deference in regulating statutes.

The Court then reviewed two arguments related to canons of statutory construction: federalism and constitutional avoidance. To answer the federalism question, the Court examined the EPA's incentives for implementing TMDLs and determined that those incentives only affect traditional land use regulations and do not intrude on state sovereignty. The constitutionality question was examined through the Commerce Clause, as the Court pointed out the undeniable interstate quality of the Bay. Additionally, none of the seven states within the Chesapeake Bay sued the EPA over TMDL. Legislative history from post-enactment of the Clean Water Act establishes that the EPA was granted a leadership role in developing and implementing management plans related to water pollution control.

Thus, the Court upheld the EPA's discretion to implement and regulate TMDLs within the Chesapeake Bay. The district court's decision was affirmed.

Find the full opinion at:

Panel: Ambro, Scirica, and Roth, Circuit Judges

Argument Date: November 18, 2014

Date of Issued Opinion: July 6, 2015

Docket Number: No. 13-4079

Decided: Affirmed.

Case Alert Author: Jessica Wood


Paul J. Bruder, Esq., Amanda J. Lavis, Esq., Robert J. Tribeck, Esq., Kristen L. Nathanson, Esq., Richard E. Schwartz, Esq., David Y. Chung, Esq., Ellen Steen, Esq., Danielle Quist, Esq., Gregg I. Adelman, Esq., William D. Auxer, Esq., Marc B. Kaplin, Esq., Counsel for Appellants

Stephen R. Cerutti, II, Esq., Robert G. Dreher, Acting Assistant Attorney General, Kent E. Hanson, Esq., J. David Gunter, II, Esq., James Curtin, Esq., Christopher Day, Esq., Kelly Gable, Esq. Counsel for Appellee, US EPA

John A. Mueller, Esq., Le Ann H. Murray, Esq., Richard A. Parrish, Esq., Counsel for Intervenor Appellees: Chesapeake Bay Foundation, Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, National Wildlife Federation

Lisa M. Ochsenhirt, Esq., Christopher D. Pomeroy, Esq., Justin W. Curtis, Esq., Carla S. Pool, Esq. Counsel for Intervenor Appellees: Virginia Association of Municipal Wastewater Agencies, National Association of Clean Water Agencies

Steven A. Hann, Esq. Counsel for Intervenor Appellee Pennsylvania Municipal Authorities Association

Cory L. Andrews, Esq., Richard A. Samp, Esq. Counsel for Amici Appellants: Representatives Robert Aderholt, Lou Barletta, Joe Barton, Marsha Blackburn, Kevin Brade, Chris Collins, Doug Collins, Scott Desjarlais, Jeff Duncan, John Fleming, Bob Gibbs, Louis Gohmert, Bob Goodlatte, Sam Graves, Morgan Griffith, Brett Guthrie, Andy Harris, Vicky Hartzler, Tim Huelskamp, Robert Hurt, Billy Long, Frank Lucas, Blaine Luetkemeyer, Thomas Massie, David McKinley, Randy Neugebauer, Scott Perry, Collin Peterson, Robert Pittenger, Mike Pompeo, Todd Rokita, Dennis A. Ross, Kurt Schrader, Bill Shuster, Adrian Smith, Glenn Thompson, Scott Tipton, Pat Toomey, David Vitter, Washington Legal Foundation

Zachary W. Carter, Hilary Meltzer, Esq., Haley Stein, Esq., Scott N. Shorr, Esq. Counsel for Amici Appellees: City of New York, City of Baltimore, City of Chicago, City of Los Angeles, City of Philadelphia, City of San Francisco, County of San Francisco

Stuart A. Raphael, Solicitor General of Virginia, Trevor S. Cox, Deputy Solicitor General, Mark R. Herring, Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney General, John W. Daniel, II, Deputy Attorney General, Joshua D. Heslinga, Assistant Attorney General, Counsel for Amicus Appellee Commonwealth of Virginia

Allison M. LaPlante, Esq. Counsel for Individual Amici Appellees: Robert W. Adler, William Andreen, Michael C. Blumm, David Case, Jamison E. Colburn, Victor B. Flatt, William Funk, Professor Craig N. Johnston, Jeffrey G. Miller, Patrick Parenteau, Robert Percival, Zygmunt J.B. Plater, Melissa Powers, Kalyani Robbins, Daniel Rohlf, Erin Ryan, Gerald Torres

Justin M. Gundlach, Esq., Hope M. Babcock, Esq., Brian S. Wolfman, Esq. Counsel for Amici Appellees: Alliance for the Great Lakes, Apalachicola Riverkeeper, Card Sound Yachts Inc., Charleston Waterkeeper Chattahoochee Riverkeeper, Cook Inletkeeper, Grand Riverkeeper, Grand Traverse Baykeeper, Gulf Restoration Network, Hoosier Environmental Law Center, Kansas Riverkeeper for Friends of the Kaw, Kentucky Resources Council, Kentucky Waterways Alliance, Lower Mississippi Riverkeeper, Missouri Coalition for Environment, National Parks Conservation Association, Nebraska Wildlife Federation, Ocean Reed Conservation Association, One World Adventure Co., Ozark 9 Society, Save The Dunes, Upper Missouri Waterkeeper, Utah Rivers Council, West Virginia Rivers Coalition, Wyoming Outdoor Council

Derek Schmidt, Kansas Attorney General, Jeffrey A. Chanay, Deputy Attorney General, Bryan C. Clark, Assistant Solicitor General, Chris Koster, Missouri Attorney General, Gregory F. Zoeller, Indiana Attorney General, Luther Strange, Alabama Attorney General, Michael C. Geraghty, Alaska Attorney General, Dustin M. McDaniel, Arkansas Attorney General, Pamela Jo Bondi, Florida Attorney General, Samuel S. Olens, Georgia Attorney General, Jack Conway, Kentucky Attorney General, James D. Caldwell, Louisiana Attorney General, Bill Schuette, Michigan Attorney General, Timothy C. Fox, Montana Attorney General, Jon Bruning, Nebraska Attorney General, Wayne Stenehjem, North Dakota Attorney General, E. Scott Pruitt, Oklahoma Attorney General, Alan Wilson, South Carolina Attorney General, Marty J. Jackley, South Dakota Attorney General, Greg Abbott, Texas Attorney General, Sean D. Reyes, Utah Attorney General, Patrick Morrisey, West Virginia Attorney General, Counsel for Amicus Appellants: States of Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming

Brooks M. Smith, Esq., Maria V. Souder, Esq., Counsel for Amici Appellees: Clearfield County Pennsylvania, County of Cambria, County of Hardy West Virginia, County of Pendleton West Virginia, County of Perry, County of Tioga, Lancaster County, New Castle County

William P. Bowden, Esq., Amanda M. Winfree Hermann, Esq., Russell B. Stevenson, Jr., Esq., Ridgway Hall, Esq. Counsel for Amicus Appellee City of Annapolis

Bradley I.B. Marshall, Esq. Counsel for Amici Appellees: Conservancy of Southwest Florida, Environmental Confederation of Southwest Florida, Florida Wildlife Federation, Sierra Club, St. Johns Riverkeeper

Douglas F. Gansler, Attorney General of Maryland, Peter K. Killough, Steven R. Johnson, Paul N. De Santis, Assistant Attorneys General, Matthew Denn, Attorney General of Delaware, Irvin B. Nathan, Attorney General for the District of Columbia, Counsel for Amici Appellees: States of Delaware, Maryland, District Columbia

Author of Opinion: Ambro, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 07/15/2015 10:47 AM     3rd Circuit  

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