AFBF Appeal
Todd Neeley DTN Staff Reporter
Fri Aug 22, 2014 11:30 AM CDT

OMAHA (DTN) -- The American Farm Bureau Federation argues EPA's so-called "pollution diet" for the Chesapeake Bay hurts farmers in the region in an appeal filed in the Third Circuit Court of Appeals in Pennsylvania this week.

This file photo showing a farm field in the Chesapeake Bay area shows the scrutiny area ag has been under. (DTN file photo by Chris Clayton)

Farm Bureau and other ag groups asked the appeals court to reverse a September 2013 district court ruling that said EPA had the authority to set numeric nutrient standards. The judge denied the ag groups' motion seeking a summary judgment in the case while granting the EPA's motion for summary judgment. The district judge ruled that farm groups opposed to EPA's role in the Chesapeake Bay had failed to demonstrate that EPA's decisions were either arbitrary or capricious.

The court battle concerns EPA's nutrient restrictions, known as total maximum daily loads (TMDL) in the bay, a 64,000-square-mile watershed that includes more than 50 tributaries that cross the District of Columbia, Maryland, New York, Pennsylvania, Virginia and West Virginia. From the outset AFBF has argued in court that EPA has exceeded states' rights to regulate their own waters.

"Although restricted to areas surrounding the Chesapeake Bay, the court's decision could have sweeping effects on states and economic activity across the country," AFBF said in a news release Thursday. "EPA has claimed that its bay limits were developed in cooperation with the bay states. But the AFBF brief points out that 'if EPA can set federal limits and deadlines in a TMDL, then it can do so with or without state cooperation: that is why 21 state attorneys general have supported us as amici.'"

AFBF is asking the appellate court to decide whether EPA has the authority to set both total allowable nutrients loads and individual limits for farms and other activities in the bay.

"AFBF maintains that Congress reserved such land use decision-making exclusively for the states," AFBF said in the news release.

In the appeal AFBF contends if EPA can set nutrients limits on individual farms or acreages, it would amount to "nothing short of federal land use zoning authority, which cannot be squared with Congress's clear and consistent determination to reserve such authority for the states."

AFBF was joined in the suit by the Pennsylvania Farm Bureau, the Fertilizer Institute, the National Chicken Council, the U.S. Poultry and Egg Association, National Pork Producers Council, National Corn Growers Association, National Turkey Federation and the National Association of Home Builders.

A number of environmental groups intervened in the case including the Chesapeake Bay Foundation, Defenders of Wildlife, Midshore Riverkeeper Conservancy and the National Wildlife Federation, along with local communities as intervenors or defendants.

Todd Neeley can be reached at

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