The Environmental Protection Agency is being sued for failing to require Pennsylvania and New York to meet nutrient reduction goals for the Chesapeake Bay.

Two separate lawsuits were filed in federal court in Washington, D.C., Thursday: one by Maryland, Virginia, Delaware and the District of Columbia and another by the Chesapeake Bay Foundation (CBF), Anne Arundel County in Maryland, the Maryland Watermen’s Association and two Virginia farmers.

The complaints allege EPA has violated the Clean Water Act and the Administrative Procedure Act, which allows parties to sue federal agencies for “arbitrary and capricious” actions.

Specifically, EPA has not complied with its duty to ensure that the two states meet goals to reduce nitrogen, phosphorus and sediment discharges into the bay set out in the bay’s Total Maximum Daily Load, sometimes called the “pollution diet” for the bay.

“EPA has admitted that neither Pennsylvania nor New York will meet their nutrient reduction targets,” the states’ lawsuit says. After reviewing Watershed Implementation Plans (WIPs) submitted last year by those states to achieve their 2025 goals under the TMDL, “the agency found that Pennsylvania would achieve only 75% of its TMDL-required reductions for nitrogen pollution. Similarly, EPA concluded that New York would meet only 66% of its TMDL-required reductions for nitrogen pollution.”

“EPA accepted the deficient plans from Pennsylvania and New York and there is no ‘reasonable assurance’ that either will get to the goal by the 2025 deadline” in the TMDL, CBF Executive Director Will Baker said, quoting the TMDL.

At issue is whether the TMDL is enforceable. CBF and the states say it is, citing a 2015 Third Circuit Court of Appeals decision upholding the legality of the TMDL in which the court said “it would surely be arbitrary or capricious for the EPA to approve a plan that a state is incapable of following.”

EPA, however, has maintained that the TMDL is “an informational tool,” citing the Obama Administration’s response to a Supreme Court petition filed by the American Farm Bureau Federation seeking review of the Third Circuit decision. (The Supreme Court declined to review it.)

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“In 2016, the Obama Administration told the U.S. Supreme Court that a TMDL is an informational tool that ‘does not impose any binding implementation requirements on the states,’ and that ‘the Bay TMDL does not directly regulate any sources or require any permits.’ The Trump Administration agrees with these statements from the prior administration,” EPA Regional Administrator Cosmo Servidio said in a January letter to Bay state lawmakers.

Jon Mueller, CBF’s vice president of litigation, said it’s “pretty rare that people rely upon briefs they filed in court as a legal standard for others to follow.”

“What needs to be followed is what the 3rd Circuit said and what District Judge [Sylvia] Rambo said, which was upheld on appeal to the 3rd Circuit, and that is the acceptance of state implementation plans that do not achieve the goals of the TMDL fail to provide ‘reasonable assurance’ that the TMDL goals will be met,” Mueller said. “That is a violation of the Clean Water Act and the Administrative Procedure Act, and those are the two bases we filed our suit upon. So we will see in court who’s right about that.”

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