Oral arguments will begin this week in a case that has the potential to determine how cities, states and the federal government work together to clean up America’s most polluted bodies of water.
After years of failed attempts, the Environmental Protection Agency has worked with states to devise a plan to clean up the Chesapeake Bay, America’s largest estuary. But monied interests with huge lobbying budgets representing agriculture, fertilizer and construction — and supported by a collection of out-of-state legislators and attorneys general — are suing to stop the EPA plan from moving forward.
If this suit were to be successful, “it would mean the most scientifically based, carefully developed pollution reduction protocol for a major body of water in the world would be taken off the table and eliminated,” said William C. Baker, president of the Chesapeake Bay Foundation — one of the groups joining the suit on the EPA’s side and the leading proponent of the cleanup — in an interview with BillMoyers.com. “The fact that there is such opposition to it I think is one of the greatest demonstrations of just how effective this protocol is in reducing pollution.”
Much of the resistance to the EPA’s plan, called the Chesapeake Clean Water Blueprint, is coming from outside of the states involved with the bay cleanup. Twenty-one state attorneys general — most from states that opposed Obama in 2012, such as Texas, Wyoming and Alaska — filed an amicus brief in the appeals process. Only one of the states, West Virginia, is in the affected region.
Proponents of the cleanup were not pleased. “The sort of hideous irony is that we have people from outside of our region trying to stop us from cleaning up our water because they’re afraid that the way to do it might come to their region,” said Baker.
“[T]his case has far-reaching implications for States across the country,” the AGs wrote. “If this TMDL is left to stand, other watersheds, including the Mississippi River Basin (which spans 31 states from Canada to the Gulf Coast), could be next.” (“TMDL” refers to “total maximum daily load — the total amount of pollutants a given state is allowed under the clean-up plan.)
A collection of legislators, mostly representing districts from outside the area and almost entirely Republican, also filed an amicus brief, writing that the decision “would allow the EPA to usurp this traditional state authority over economic development and land-use management decisions.” The legislators also said the suit would have a negative impact on bay states’ economies.
In fact, according to a peer-reviewed report by the Chesapeake Bay Foundation, the cleanup would have significant economic benefits for bay states. Through improved water and air quality, agricultural and seafood production, property values, and flood and hurricane protection, the report found that by implementing the blueprint, the region would see an additional $22.5 billion of economic output annually. The report didn’t take into account the cost of implementing the blueprint, but that is estimated at $5 or $6 billion per year, resulting in a net benefit of around $17 billion per year.
Right now, the Chesapeake Bay is plagued by the effects of various pollutants from the states that make up the watershed: Virginia, Maryland, Pennsylvania, New York, Delaware and West Virginia. Algae blooms, and the dead zones that result, are one of the worst manifestations of the pollutants.
These can have serious effects. Consider, for example, Toledo, Ohio, where this summer some 500,000 people had to go for days without water when an algae bloom in Lake Erie, fueled by farm runoff and exacerbated by climate change, made the city’s water undrinkable. Some residents drove for hours to cities in neighboring states looking for bottled water before water was trucked in. Given Ohio’s runoff situation, many officials felt the crisis had been less a question of “if” than “when.” Bodies of water across America face similar threats.
Efforts to clean up the Chesapeake Bay started in 1983, but floundered for years, with states repeatedly missing deadlines to cut pollutants. In 2009, the Obama administration stepped in with an executive order authorizing the EPA to create a plan to get the bay cleaned up by 2025. The result was the Chesapeake Clean Water Blueprint. Under the blueprint, the states would submit their own proposals on how to reduce pollutants, but the EPA could take legal action against them if they fail to do so.
The plan would target three pollutants — nitrogen, phosphorus and sediment — which come from a number of sources, including sewage, fertilizer and the burning of fossil fuels.
The plan will also result in greener cities, and may help with both climate change adaptation and mitigation. “We will have more green areas in our urban areas: More forests, more open space, more forested buffers, more wetlands that will then remove pollution,” said Dr. Beth McGee, the Chesapeake Bay Foundation’s senior water quality scientist.
But the plan was controversial from the start. Multiple bills were introduced in the House of Representatives seeking to challenge the EPA’s authority to oversee the cleanup. When those failed to clear Congress, lobbying groups led by the American Farm Bureau sued the EPA to halt the cleanup, and the 21 attorneys general — who are increasingly the target of lobbyists’ efforts to effect policy — and state reps joined in.
State legislatures have also sought to limit their compliance with the plan, but with limited success. Before losing his governorship in the midterm elections, Pennsylvania’s Tom Corbett signed a bill removing requirements for stream buffer zones — an important element of the plan — from his state’s cleaner waterways.
But the biggest threat to the cleanup plan comes from the lobbying groups’ suit. The American Farm Bureau is appealing a failed earlier attempt to halt the blueprint. Oral arguments will begin Tuesday, November 18, in the Third Circuit Court of Appeals in Philadelphia. But no matter which side wins and loses, the case will probably be appealed again, all the way to the Supreme Court. In the meantime, the blueprint will remain in place.
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