Monday, November 12, 2012

Post Argument Briefs on Deference Submitted in AFBF v. EPA


On October 9, 2012 in the case of American Farm Bureau Foundation (AFBF) v. Environmental Protection Agency (EPA), the Court granted a request for additional briefing on the issue of whether the Court should defer to EPA’s interpretation of the Clean Water Act. Plaintiffs AFBF, defendants EPA, and intervenor-defendants Chesapeake Bay Foundation (CBF) have submitted their briefs on deference. Plaintiffs AFBF filed a reply brief on November 2, 2012 and the Court is now in the process of making its final decision in the case.
Click on the links below to read the full briefs filed by the parties:
 
Written by Anna Leonenko, Research Fellow
Penn State Law, Agricultural Law Center
November 12, 2012

Monday, July 23, 2012

Chesapeake Bay Foundation Submits Brief Supporting EPA

On July 20, 2012, in the case American Farm Bureau Foundation (AFBF) v. Environmental Protection Agency (EPA), Intervenor Chesapeake Bay Foundation filed a brief in support of EPA’s cross-motion for summary judgment.  In its brief, Intervenor Chesapeake Bay Foundation argued that EPA should be granted its cross-motion for summary judgment because AFBF lacked appropriate standing, because EPA has the authority to issue Total Maximum Daily Load (TMDL) amounts, and because the vast size and scale of TMDL requires EPA be granted “substantial deference.”  To read Intervenor Chesapeake Bay Foundation’s brief in its entirety, click the link below.

Intervenor Chesapeake Bay Foundation Reply Brief in Support of EPA's Cross-Motion for Summary Judgment (July 20, 2012)

Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center

Thursday, July 19, 2012

Defendant Intervenors File Reply Briefs in Support of EPA’s Cross-Motion for Summary Judgment

On July 13, 2012, in the case American Farm Bureau Federation (AFBF) v. United States Environmental Protection Agency (EPA), two of the three Defendant Intervenors filed reply briefs in support of Defendant EPA’s cross-motion for summary judgment.  To read the briefs in their entirety, please click on the links below:

Intervenor Municipal Association Brief in Support of EPA's Cross-Motion for Summary Judgment (July 13, 2012)

Intervenor Pennsylvania Municipal Authorities Association Brief in Support of EPA's Cross-Motion for Summary Judgment (July 13, 2012)

Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center
July 19, 2012

Friday, July 6, 2012

EPA Files Brief in Support of Cross Motion for Summary Judgment

On June 20, 2012, in the case American Farm Bureau Federation (AFBF) v. Environmental Protection Agency (EPA), Defendant EPA filed a reply brief in support of their cross motion for summary judgment.  Defendant EPA argues Plaintiffs in the case have not overcome the initial burden of a strong presumption of upholding agency decisions.  Furthermore, the EPA asserts that the agency has not intruded upon the rights of each Chesapeake Bay Watershed State because the setting of Total Maximum Daily Loads (TMDLs) is not equivalent to implementation.

To read the brief in its entirety, click on the link below:





Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center
July 6, 2012

EPA Evaluates Final Phase II WIPs

On May 30, 2012, the Environmental Protection Agency (EPA) issued evaluations of each Chesapeake Bay Watershed State's final Phase II Watershed Implementation Plan (WIP).  New York has not submitted a final Phase II WIP, and therefore the EPA has not evaluated their plan.

To read the EPA evaluations of the Chesapeake Bay Watershed States’ final Phase II WIPs in their entirety, click the links below.


Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center
July 6, 2012

AFBF Submits Brief on Motions for Summary Judgment

On May 21, 2012, Plaintiff American Farm Bureau Federation (AFBF) submitted a brief that simultaneously opposed Defendant Environmental Protection Agency’s (EPA) cross motion for summary judgment and supported Plaintiff AFBF’s motion for summary judgment.  The essence of Plaintiff AFBF’S argument was that the EPA exceeded its statutory authority and acted arbitrarily and capriciously when imposing final Total Maximum Daily Load (TMDL) requirements on Chesapeake Bay Watershed States. 

To read the full AFBF brief, click the link below.

Plaintiff AFBF's Brief in Opposition of EPA's Cross Motion for Summary and Memorandum in Support of Plaintiff's Motion for Summary Judgment

Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center
July 6, 2012

Intervenors in AFBF v. EPA Submit Briefs

On April 12, 2012 and April 20, 2012, in accordance with U.S. District Judge Sylvia Rambo’s January 11, 2012 court order amending case management deadlines and dates, the three Intervenors involved in AFBF v. EPA each submitted briefs that supported the EPA’s cross-motion for summary judgment and opposed AFBF’s motion for summary judgment. 

To read each Intervenor's brief, click on the link provided below:






Written By M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center
July 6, 2012

Wednesday, April 25, 2012

YouTube Videos Covering TMDL Issues Posted

The Penn State Law Agricultural Law Center has recently posted four YouTube videos.  Two videos relate to the ongoing federal case entitled AFBF v. EPA (American Farm Bureau Federation v. Environmental Protection Agency).  One video covers Pennsylvania's Phase II WIP.  Another video covers U.S. Representative Goodlatte's Chesapeake Bay TMDL-related Congressional Bill. 

Click here to view the YouTube video covering AFBF's summary judgment motion against Defendant EPA. 

Click here to view the YouTube video covering EPA's cross-summary judgment motion against Plaintiff AFBF. 

Click here to view the YouTube video covering Pennsylvania's Phase II WIP and how it impacts farmers. 

Click here to view the YouTube video covering U.S. Goodlatte's Bill concerning the Chesapeake Bay TMDL. 

Written By Justin Ritter, Research Fellow
Penn State Law, Agricultural Law Center 

Friday, March 30, 2012

Bay States Submit Final Phase II WIPs

On March 30, 2012, five Bay States and the District of Columbia submitted its Final Phase II WIPs to the EPA.  New York was the only jurisdiction that failed to submit its Final WIP.

To read the plans and how they affect agriculture please click from the following options below:

District of Columbia Final Phase II WIP
Delaware Final Phase II WIP
Maryland Final Phase II WIP
Pennsylvania Final Phase II WIP
Virginia Final Phase II WIP
West Virginia Final Phase II WIP

Written By Justin Ritter, Research Fellow
March 30, 2012  

Tuesday, March 27, 2012

EPA submits its Summary Judgment Motion Against AFBF

On March 27, 2012, Defendant EPA filed its motion for Summary Judgment against Plaintiff AFBF.

Essentially, EPA claims its involvement with the Final TMDL does not render the action unlawful.

EPA makes four specific claims or responses against AFBF.

First, EPA claims AFBF failed to prove standing in this case.

Second, EPA claims it acted in accordance with its Clean Water Act authority because the Final TMDL was non-binding on the Bay States, as it was merely a guide for the states.  EPA posits the TMDL was almost entirely based on voluntary agreement and action by the Bay States.  EPA argues its only changes to the states' proposed TMDL was its backstop use in three instances: once to change the number of total allocations in one state and twice to adjust the number of total allocations between categories in two other states.  Notwithstanding the backstop uses, EPA argues even these backstops cannot prevent the Bay States from ignoring the TMDL requirements.  EPA proposes its only recourse for non-compliance with the TMDL is to alter its distribution of NPDES permits for point source discharges.

Third, EPA claims the Draft TMDL public notice and comment and period was lawful because the draft was not a rule, but merely an informal adjudication.  Also, EPA addressed AFBF's contention that EPA failed to provide adequate documentation for the public to provide a meaningful opportunity to comment.  EPA contended while some documents may have been withheld from the public in the draft public notice and comment period, these documents were readily and easily accessible via the internet.

Fourth and last, EPA claims it did not act arbitrary and capricious in making the Final TMDL.  Specifically, EPA claims it should be afforded deference in making its modeling decisions.  Further, EPA responded to AFBF's claims that the agency failed to use or even consider relevant but conflicting data.  EPA argued conflicting data by itself cannot destroy the credibility of the data the EPA used.  Rather, EPA contends the data it used was better than the conflicting data cited by AFBF in its motion for summary judgment.

By April 20, 2012, intervenors in this case must submit their memorandums in support of summary judgment for either Plaintiff or Defendant.

To read EPA's motion for summary judgment, please click here

Written By Justin Ritter, Research Fellow
March 27, 2012  

Wednesday, March 7, 2012

U.S. Representative Goodlatte introduces Chesapeake Bay Program Reauthorization and Improvement Act

On March 7, 2012, U.S. House Representative Robert Goodlatte [R-VA6] introduced legislation entitled the Chesapeake Bay Program Reauthorization and Improvement Act.  Tim Holden [D-PA17], Glenn Thompson [R-PA5], and Bob Gibbs [R-OH18] are co-sponsors.  Some of the proposed actions are listed below.

1.  The Act amends part of the Clean Water Act to reserve power solely to the States to implement a TMDL in the Chesapeake Bay.  The EPA Administrator may review a State WIP and offer non-binding recommendations for consideration by the State, but may not take any action to supersede any State implementation.  

2.  The Act proposes to establish voluntary Chesapeake Bay Watershed Partnerships.  This partnership is created at the request of any Chief Executive (Governor of any Bay State or Mayor of D.C.).  Upon creation, the USDA Secretary shall enter into a memorandum of understanding with the Chief Executive.  Eventually, the Chief Executive must create a water quality assessment of the State's water quality goals.  If the Chief Executive determines by its assessment that the aggregate reductions in agricultural pollution (nitrogen, phosphorous and sediment) meet the State's water quality goals, then no further reductions of pollution are required by the State or Federal Government. 

3.  The Act proposes to establish a voluntary interstate nitrogen, phosphorus and sediment trading program for the Chesapeake Bay. 

4.  The Act proposes to establish an Independent Evaluation and Technical Advisory Committee.  The Committee shall review and report to Congress the progress made by Federal and State Chesapeake Bay restoration activities. 

5.  For each fiscal year 2013-2018, the Act proposes to allocate the EPA Administrator $50,000,000 to carry out Section 117 of the Federal Water Pollution Control Act and $40,000,000 to support the Chesapeake Bay States in carrying out activities related to a total maximum daily nutrient or sediment load in the Chesapeake Bay.  Also, the Act requires the Administrator to reserve certain percentages of the annual $40,000,000 allocation to Chesapeake Bay States.  As determined by the Administrator, the reserve amounts are allocated to the Chesapeake Bay States that made sufficient progress toward meeting quality goals and are properly managing financial resources intended to enable the State to meet such goals.  The States shall use these allocations for carrying out activities related to TMDL.  Maryland, Virginia, Pennsylvania, and D.C. are given allocation priority. 

Click Here to Read Congressman Goodlatte's Proposed Legislation

Written by Justin Ritter, Research Fellow
March 8, 2012







Monday, March 5, 2012

Federal Leadership Committee Releases Bay Action Plan and Progress Report

On March 5, 2012, the Federal Leadership Committee (comprised of the EPA and the United States Departments of Commerce, Defense, Homeland Security, Interior, and Transportation) released its second Bay Action Plan for Fiscal Year 2012 (October 1, 2011 through September 30, 2012) and Progress Report concerning its first Bay Action Plan.  Members of the public can submit comments on the Report and Plan until March 16.  See more details of each submitted document below. 

Progress Report for Fiscal Year (FY) 2011 (October 1, 2010 through September 30, 2012)

1.  Restore Clean Water Goal
     a.  In 2010, the Bay obtained the following percentage toward meeting 2025 goal: nitrogen 8  percent, phosphorus 1 percent, and sediment 11 percent. 
     b.  From May 2010 to September 2011, National Resources Conservation Service treated more than 650,000 acres of working lands in priority watersheds.

2.  Recover Habitat Goal
     a.  From 2008 to 2010, Bay Basin obtained a yearly average of 1,107 restored wetland acres and 8,088 enhanced wetland acres.
     b.  Since 2010, Bay Basin obtained 247 miles of riparian forest buffers. 
     c.  In FY 2011, 148 stream miles were opened for fish passage.  
     d.  To date, all moderate to high-density populations of nutria have been reduced to near zero on 150,000 acres of wetlands.

3.  Sustain Fish and Wildlife Goal
     a.  2010-2011 Blue Crab Advisory Report indicated the abundance of adult blue crabs was 254 million exceeding the current rebuilding target.
     b.  From 2009-2011, the rolling three-year average was estimated to be 47,269 black ducks in the Bay; the 2025 goal is 100,000 birds.

4.  Conserve Land and Increase Public Access Goal
     a. Acre conservation system in progress. As of 2010, 7.8 million acres are protected watershed-wide. 

After reviewing its goals, the Federal Leadership Committee reviewed its strategies: Expand Citizen Stewardship, Develop Environmental Markets, Respond to Climate Change, Strengthen Science, and Implementation and Accountability. 

Bay Action Plan for Fiscal Year 2012: (October 1, 2011 through September 30, 2012)

The Second Bay Action Plan also covers the four goals covered in the FY 2011 Progress Report.  The Plan highlights continued and new projects. 

Click Here to View the Progress Report                  Click Here to Comment on the Report


Click Here to View the Second Bay Action Plan     Click Here to Comment on the Plan


Written by Justin Ritter, Research Fellow
March 9, 2012









Wednesday, February 15, 2012

EPA reviews WIP II Drafts and Two Year Milestones


On February 15, 2012, EPA provided feedback to state/district submitted Draft WIP II and Two Year Milestones.  EPA acknowledged “key strengths,” listed areas to improve, and suggested repercussions for failure to provide “reasonable assurance” that the area will meet the Final TMDL allocation limits.   

EPA also made a general note to all jurisdictions on potential EPA actions.  EPA reiterated it might take certain federal actions, as described in its December 29, 2009 letter, to ensure Bay TMDL allocations are achieved.

In the December letter, EPA claimed it may exercise its discretionary authority to take any or all of the following actions: (1) expand NPDES permit coverage to currently unregulated sources, (2) object to NPDES permits and increase program oversight, (3) require net improvement offsets, (4) establish finer scale wasteload and load allocations in Bay TMDL, (5) require additional reductions of loadings from point sources, (6) increase and target federal enforcement and compliance assurance in the watershed, (7) condition or redirect EPA grants, and (8) federal promulgation of local nutrient water quality standards. 

Considering agriculture, EPA determined Pennsylvania provided less reasonable assurance than demonstrated in Phase I WIP.  In contrast, EPA determined Virginia provided “strong” reasonable assurance.  In West Virginia, EPA concluded it demonstrated stronger reasonable assurance than earlier submissions.  In Delaware, EPA found “there was no backsliding from the . . . reasonable assurance in the Phase I WIP.”  EPA made no mention of reasonable assurance in the Maryland review.

Click here to view EPA's Review of Pennsylvania's Draft WIP II and Two Year Milestones

Click here to view EPA's Review of Maryland's Draft WIP II and Two Year Milestones

Click here to view EPA's Review of Virginia's Draft WIP II and Two Year Milestones

Click here to view EPA's Review of Delaware's Draft WIP II and Two Year Milestones

Click here to view EPA's Review of West Virginia's Draft WIP II and Two Year Milestones

Written by Justin Ritter, Research Fellow
 February 16, 2012

Monday, February 13, 2012

President Obama's FY 2013 Proposed Budget to Increase Chesapeake Bay Restoration Funding to EPA


On February 13, 2012, President Obama published his proposed budget for Fiscal-Year (FY) 2013. 

Concerning the Chesapeake Bay, President Obama seeks to increase EPA’s Bay restoration funding by $15 million.  President Obama proposes the funding will be used to support Bay watershed States as they implement their Watershed Implementation Plans.

For a summary describing the proposed budget’s affect on American agriculture please visit: Obama’s FY 2013 Budget and Agriculture Summary.
 
Written By Justin Ritter, Research Fellow 
February 15, 2012

Friday, January 27, 2012

American Farm Bureau Federation (AFBF) v. Environmental Protection Agency (EPA): AFBF Files Initial Motion and Memorandum For Summary Judgment


On January 27, 2012, AFBF filed its motion and memorandum in support of summary judgment in the United States District Court for the Middle District of Pennsylvania.  In a complaint filed January 3, 2011, AFBF seeks the Court to overturn the EPA Final Total Maximum Daily Load (TMDL) set for the Chesapeake Bay Basin states and district.  The TMDL sets a total pollution cap on nitrogen, phosphorous and sediment discharges throughout the affected region. 

AFBF makes three primary arguments: (1) EPA unlawfully exceeded its Clean Water Act authority by establishing mandatory watershed-wide implementation plans upon subjected jurisdictions; (2) EPA violated the Administrative Procedure Act by restricting public access to critical information during the public comment period; and, (3) EPA engaged in arbitrary and capricious rulemaking.  AFBF asserts these arguments justify the nullification of the EPA Final TMDL.


Written by Justin Ritter, Research Fellow
 February 1, 2012

Friday, January 6, 2012

State and Federal Agencies Submit Two-Year Milestones


On January 6, 2012, EPA received the first set of two-year milestones (January 1, 2012 to December 31, 2013) from the seven Chesapeake Bay Jurisdictions.  The milestones show what measures each jurisdiction will take to ensure pollution levels are in compliance with the Bay’s Final Total Maximum Daily Load (TMDL).

Also on January 6, 2012, six federal agencies consolidated to issue a two-year water quality milestone to support the seven jurisdictions.  



Written By Justin Ritter, Research Fellow 
January 8, 2012