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The Supreme Court Should Hear the Appeal of EPA’s Chesapeake Bay TMDL Rule

The Supreme Court will soon decide whether it will hear an appeal to overturn the latest outrageous power grab by the Environmental Protection Agency (EPA). The case, American Farm Bureau v. EPA, deserves much more attention than it has received. At first glance, it appears the issues at stake are merely regional and are only of concern to farmers in the region. 

But in fact, if the Supreme Court allows the EPA to implement its new Clean Water Act rule to regulate runoff pollution into the Chesapeake Bay, then it can use the ruling as a precedent for creating similar rules that impose strict new land-use controls affecting housing and many industries, as well as agriculture, in watersheds throughout the country.   

The EPA in 2010 proposed a new comprehensive blueprint to regulate water pollution from the entire 64,000-square-mile Chesapeake Bay watershed, which encompasses all of Maryland and the District of Columbia and large parts of Pennsylvania, Virginia, West Virginia, New York, and Delaware. 

The rule sets overall “Total Maximum Daily Loads” (TMDL) for nitrogen, phosphorous, and sediment flowing into the Chesapeake Bay. It then divides this TMDL into 92 segmented TMDLs covering the entire watershed, sets specific deadlines for meeting the targets in each of the 92 areas, and threatens sanctions for missing the deadlines.    

In sum, there are two very bad things about the rule.

First, it overturns the Clean Water Act’s clear assignment of the “primary responsibilities” to the states to regulate water pollution. As it is attempting to do with other rules, the EPA has decided that the cooperative federalism required by Congress really means that the EPA gives the orders and the states obey.

Second, it will effectively give the EPA final say over all decisions about changes in land use, even the most minute. Local and state zoning already places heavy burdens on landowners. Farmers will be hardest hit by the Chesapeake TMDL. For example, Virginia estimates that half a million acres will have to be taken out of agricultural production in that state.

But the tens of billions of dollars in compliance costs will spread far beyond farming. One unnoticed cost will be in increased housing prices. Joel Kotkin, one of the nation’s leading experts on housing and demographics, has assembled a wide array of research and recently concluded that the economic squeeze on middle and working class people is largely due to increasing housing costs: “[H]ousing now takes the largest share of family costs, while expenditures on food, apparel, and transportation have dropped or stayed about the same. In 2015, the rise in housing costs essentially swallowed savings gains made elsewhere, notably, savings on the cost of energy.”

Furthermore, Kotkin observes: “The regions with the deepest declines in housing affordability, notes William Fischel, an economist at Dartmouth College, tend to employ stringent land-use regulations, a notion recently seconded by Jason Furman, chairman of President Obama’s Council of Economic Advisors.” 

The East Coast, of which the Chesapeake Bay watershed is a major part, already has among the most stringent land-use regulations—and consequently among the highest housing costs in the nation. The EPA now wants to make land-use regulations much more stringent with its Chesapeake TMDL rule.

The American Farm Bureau Federation has appealed the case to the Supreme Court primarily on behalf of farmers, but overturning the Chesapeake TMDL rule is also in the interests of anyone who cares about affordable housing and anyone who opposes the continuing federalization of land-use controls. That’s why, when the Supreme Court meets to consider the Farm Bureau’s petition as well as amicus briefs from 92 Members of Congress and 22 states, I hope they will decide to hear the case.