American Farm Bureau Federation, et al. v. EPA, Case 13-4079 oral arguments were held Tuesday (see previous post) and early indications suggest the Farm Bureau is fighting an uphill battle as it attempts to block the EPA from implementing a Total Maximum Daily Load (TMDL) program for Chesepeake Bay. The program calls for a 25% percent cut in nitrogen, 24% cut in phosphorus, and 20% reduction in sediment loads by 2025.

According to Dan Packel writing for Law360, attorney Richard Swartz, counsel for Farm Bureau et al., told the three-judge panel, “What we are objecting to is the EPA taking over ultimate control of the authority which Congress ruled belongs to the states” and “…even if the states wished to cede their control over the outflows to the EPA for the purpose of coordination, they still lacked the ability.”

According to Law360, the judges responded by questioning whether or not the states could implement a coherent policy, suggesting that some coordination was probably a good thing.

Last year’s decision made by Judge Sylvia H. Rambo, the presiding federal judge in the United States District Court for the Middle District of Pennsylvania, affirmed the EPA’s authority to limit pollution entering Chesapeake Bay. According to the case summarypublished by the Chesapeake Bay Foundation:

“Judge Rambo went on to describe the process of developing state watershed implementation plans (WIPs) as a collaborative process between EPA and the states, not the coercive exercise the Farm Bureau portrayed. In fact, the court found it noteworthy that no state has filed suit challenging the TMDL, let alone alleged that their participation in the TMDL drafting process was the result of coercion.”

This environmental issue, in my opinion, is much bigger than the Keystone XL Pipeline, yet it’s receiving relatively little attention from the media. It relates to so many other vital issues facing us: water quality, land use, soil management, agricultural practices and how we grow our food. It even relates to diet and consumer preferences because much of the nitrogen and phosphorus comes from animal manure and poultry litter.

We’ll have to wait for the Court’s decision. It’s a big one. Let’s hope they get it right.