Environmental Supra-Nationalism

In his Note, The Proof Is in the Policy: The Bush Administration, Nonpoint Source Pollution, and EPA's Final TMDL Rule, Bryant McCulley observes that the regulation of nonpoint source (NPS) pollution involves contentious issues of environmental federalism.1 I could not agree more. However, I would like to take this opportunity to push this discussion in a new direction. NPS regulation should transcend domestic federalism concerns and recognize the transnational nature of environmental harm. This is particularly the case given ecosystem interconnection and the cross-border sources of water pollution. Unless these transnational sources of pollution are taken into account, Environmental Protection Agency (EPA) regulation of NPS may fall short of its goals. McCulley concludes that, for statutory reasons, the actual regulation of NPS must remain the prerogative of the states.2 I read this conclusion as more than just a matter of statutory imperative, but also as a normative endorsement on McCulley's part of the principle of subsidiarity. This endorsement ought to prompt reflection among international lawyers. In a world of onal environmental harm, is there cause for concern about positing states and subnational units as the most appropriate locus for environmental governance? 1. The Clean Water Act and the TMDL Litigation The traditional focus of the Clean Water Act (CWA) has been to encourage states to regulate water pollution through the use of technology-based standards and discharge permits under (sec) 402 of the Act.3 This traditional focus has been quite successful in addressing point sources of water pollution. NPS pollution, on the other hand, continues to increase. NPS pollution occurs when water runs over land or through the ground, picks up pollutants, and deposits them in surface waters or groundwater. Major sources of NPS pollution include cattle farms, agriculture, mines, and silviculture. NPS pollution is responsible for a large part of the impairment of the nation's streams and rivers, which, in turn, is only the first step in a broader array of environmental harms. Water contamination can accumulate within the food chain and affect biodiversity and life generally. So, how can NPS pollution be regulated? McCulley posits that the CWA's long-dormant Total Maximum Daily Load (TMDL)4 program can offer assistance. A TMDL is an estimate of the maximum amount of a pollutant that a water body can assimilate and still meet applicable water quality standards.5 If states establish TMDLs and strive to ensure that water bodies adhere to those TMDLs, then overall water quality will improve. Using the TMDL approach would diversify the regulatory focus to include water quality-based standards, as opposed to a singular focus on technology-based standards. Administrative action involving TMDLs and NPS pollution has attracted lawsuits in both the Ninth and District of Columbia Circuit Courts of Appeals.6 McCulley's Note focuses on litigation in the D.C. Circuit where, in American Farm Bureau Federation,7 litigants challenged the EPA's Final TMDL Rule (Final Rule).8 These litigants allege that the EPA exceeded its authority in promulgating a Final Rule for TMDLs that covered rivers affected solely by NPS pollution. …