Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay. As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative federalism in affirming the TMDL, stating that:
It is unavoidable that states and the federal government will occasionally disagree. EPA worked with the states to ensure that the proposed allocations were sufficient to achieve water quality standards. Complete unanimity between the states and EPA in resolving all the complex issues involved here is likely impossible. Disagreements between the states and the federal government regarding some of the allocations necessary to achieve water quality standards was to be expected, and the debate and discussions that ensued were of nature that is required in a cooperative federalism scheme. Moreover, although Plaintiffs believe that this process was coercive, it is noteworthy that no state has filed suit challenging the TMDL, let alone alleged that their participation in the TMDL drafting process was a result of coercion.
Perhaps Judge Rambo spoke too soon. The American Farm Bureau, the original plaintiff, appealed. Now, a group of 21 states has filed an amicus brief in support of the AFB. The opening paragraph of the brief asserts that the TMDL:
defies the limits of the Clean Water Act and strips States of their traditional right to make the land-use decisions necessary to comply with federal water quality standards.
Frankly, I’m a little confused. Of the 21 states filing the amicus brief, only one, West Virginia, is one of the six states (Virginia, Maryland, Delaware, West Virginia, Pennsylvania, and New York) that are subject to the TMDL. As to West Virginia, why did they not appeal the TMDL directly, rather than merely participating as an amicus?
As to the other five states, a fair inference is that Judge Rambo is correct. Correcting the pollution problems in the Chesapeake Bay is a difficult and complicated endeavor. The states affected presumably did not think that the TMDL was perfect, but they were prepared to live with it.
Do the states filing the amicus brief recognize the irony in complaining that the TMDL ignores the proper role of the states in the TMDL process when those states that will actually be affected by the TMDL participated in the process and did not themselves file suit?
This may not be so surprising. The political/institutional cost-benefit considerations differ between the states directly affected and those one step removed. It is conceivable that those directly affected might lose all kinds of inter-agency leverage (including but not limited to potential federal funding) by challenging, while those once-removed will have multiple bites at the apple when their time comes.
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