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
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
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?
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On Wednesday, EPA published certain amendments to the Mercury and Air Toxics Standards in the Federal Register. EPA describes most of the changes as "technical corrections," but there is one important substantive change.