The federal Chesapeake Bay cleanup initiative that has put pressure on Lancaster County farmers and raised sewage fees for many residents could be headed to the U.S. Supreme Court.
That’s the prediction of Lancaster County native Sean High, an attorney with the Penn State Agricultural Law Resource and Reference Center.
Since 2012, the Pennsylvania Farm Bureau, American Farm Bureau Federation, home-building groups and 21 states — but not Pennsylvania — have fought the cleanup plan in court.
The federal Environmental Protection Agency has stepped into the rights of states in ordering farm runoff prevention and sewage plant upgrades, according to the lawsuit.
Another key challenge has been that the on-the-farm conservation efforts of farmers, particularly Plain Sect and other farmers who practice no-till farming, have not been considered. That has led to “faulty science” in computer models, exaggerating the problem and short-changing the contributions of farmers, according to the lawsuit.
In a first salvo, U.S. District Court Judge Sylvia Rambo ruled in 2013 that the federal government did not overstep its bounds.
That ruling was quickly appealed to a U.S. Circuit Court of Appeals, where oral arguments concluded Nov. 18.
Whatever ruling is handed down there will certainly be appealed to the Supreme Court, which just may be eager to take on the case, High said Thursday at an Ag Issues Forum in Lancaster held by the Lancaster Chamber of Commerce and Industry.
“I hope they take it,” said High, who developed an interest in agricultural law working summers on his grandfather’s dairy farm in Lancaster County.
“I think a lot of farmers feel they are being picked on, that they’re being accused of the reason for pollution in the Bay.”
The legitimate question of federalism in what some see as a responsibility of the states could be a key issue that would persuade Supreme Court justices to hear the case, said High, who is a graduate of Lancaster Mennonite School and Millersville University.
The computer modeling used to gauge farmers’ contributions to the mandatory cleanup also needs to be clarified,” he added, saying, “I question the accuracy” of the models.
Some in his audience seconded that concern.
Jeff Swinehart, deputy director of the Lancaster Farmland Trust, said its work with about 700 farms in Lancaster County show about 50 percent are not having their best-management practices documented by government officials.
Christopher Thompson, new administrator of the Lancaster County Conservation District, said his agency has launched a pilot project to verify runoff-reducing measures by county farmers.
“Everything we’ve seen is 35 to 60 percent of these numbers are not being captured that helped build this (EPA computer) model.”
Thompson, who noted that Pennsylvania was the state farthest from reaching cleanup goals set by EPA, had dire warnings for Lancaster County’s residents.
“This will be THE hot topic the next two years. It’s going to affect every one of us through higher taxes or because of penalties put on municipalities or counties.”
He said Lancaster County’s farmers have been “the first responders in taking responsibility for a lot of the issues.”
But, he noted, “Lancaster County has a big target on it.”
Referencing three recent crackdowns by EPA on Plain Sect farmers near Intercourse and Bart Township, Thompson warned, “I have had discussions with EPA and they are coming back. They haven’t identified where or when but within the next year or two years, they are coming back.”
Said High, “ I fully support the Chesapeake Bay Program. I want the Bay cleaned up. It’s vital and necessary. But there has to be a balance with the farmers because some of the regulations are going to be very difficult on them.
"Maybe openness is a better step. Maybe that comes out of a lawsuit.”