by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School
On January 10, 2011, the American Farm Bureau Federation (“AFBF”) sued the EPA in the U.S. District Court for the Middle District of Pennsylvania alleging that the agency’s promulgation last month of a total maximum daily load (“TMDL”) for nutrients and sediments in the Chesapeake Bay watershed was ultra vires and otherwise legally defective. More specifically, AFBF’s Complaint attacks the TMDL under the following theories:
(a) the “allocation” of pollutant loads among sources in a TMDL exceeds EPA’s authority under the Clean Water Act; (b) the assigned pollutant loads are based on erroneous information; (c) the erroneous information used to derive the assigned pollutant loads was fed into computer models that are unsuitable for deriving such loads – even with accurate information; and (d) during the comment period the public did not have access to the information it needed to comment effectively on the modeling results and the assumptions in the Final TMDL.
is defending the TMDL, with agency officials saying Jan. 10 at a conference with environmentalists that the TMDL is on solid legal ground and citing key legal precedents, including a 1995 ruling from the U.S. Court of Appeals for the 9th Circuit in Dioxin/Organochlorine Center v. Clarke and a 1992 ruling from the Supreme Court in Arkansas v. Oklahoma. The officials noted that the Bay states asked the agency to set the TMDL, and the schedule for its creation was established in a court settlement with environmentalists. Further, the officials argued that EPA is owed deference in areas where the CWA is not explicit, such as how to address the impairment of a multistate waterbody.