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A 'Merciful' End for the Chesapeake Bay Program?

Kalbird11 A lively discussion about the Chesapeake Bay’s future is unfolding on Daily Kos. The blogger Southriver makes the argument that President Barack Obama’s May 12 executive order on the Bay cleanup puts a “merciful” end to the “voluntary and collaborative” partnership of Chesapeake regional states and the federal government.

The blog calls the Chesapeake Bay Program, set up in 1983, “an artifact of the era of deregulation” that was “was entirely consistent with the ‘deregulatory’  thrust of the Reagan era.” Now that cooperative model is being “replaced with something very different from what we have had in the past,” a Presidential order “directing the federal government to take ownership of the effort to clean up the Bay,” Southriver writes.

“The Obama administration has chosen to deploy a political solution to the problem of pollution in the Chesapeake. His decision provided a merciful coup de grace to the states' coalition, which would otherwise have been forced into the embarrassment of a public admission that 'Chesapeake 2000' (interstate agreement) had been a total failure and that the cleanup goals were, once again, being pushed into the future,” the blogger wrote.

So, what exactly does the Presidential executive order do? Let's take a look at that. For one, the order does not end the states' coalition (as the blogger on Daily Kos implies).  Still continuing is the Chesapeake Bay Executive Council, made up of the governors of the Bay states, along with the administrator of the U.S. Environmental Protection Agency and a representative of state legislators.

In fact, during her public comments to the governors during the Executive Council's May 12 meeting at Mount Vernon, Virginia, EPA Administrator Lisa Jackson talked about the need for collaboration and "a shared sense of responsibility."

The order provides the potential for greater federal leadership on the Bay cleanup – which would certainly be welcome – but the details have yet to be spelled out.  New two-year pollution reduction goals have been announced by the states. But still missing is any kind of enforcement mechanism, with specific penalties for the states if they fail to follow through with their promises.

The document directs EPA to look at its existing authority and use it to the fullest extent possible for reducing pollution in the Bay. This is a significant -- and praiseworthy -- aspect of the President's directive. The order also tells EPA to look at how to expand its existing permitting programs and determine what new authorities it may need to restore clean water. That's also good. Finally, the order creates a new Federal Leadership Committee, chaired by the EPA Administrator (or her representative) and including representatives of the U.S. Departments of Agriculture, Commerce, Defense, Homeland Security, Interior and Transportation. 

The committee must create a new draft strategy for restoration and protection of the Chesapeake Bay within 180 days. Then the committee must publish that new strategy along with annual “action plans.”

There is no question that this order sends the right signal, saying that “the federal government should lead this effort” to restore the Bay. 

But the proof will not be in announcements, orders, committees and reports – but in the actual pollution reductions we see in the Chesapeake.  Let's continue to push for concrete action, verifiable results and  accountability before concluding that a new day has dawned for the Bay.




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"But still missing is any kind of enforcement mechanism, with specific penalties for the states if they fail to follow through with their promises."


There actually has been, and continues to be, an enforcement mechanism in the Clean Water Act, providing specific civil and criminal penalties, as well as administrative orders, at the instance of EPA and another provision for suits by private plaintiffs against the EPA for failure to take any action other than a "discretionary" action. CBF has made increasing use of such litigation in recent times, I believe.

One big problem was, however, that so long as EPA was allowed to get away with the approach of the Reagan-era "voluntary" Chesapeake Bay Program, there were no "non-discretionary" acts to sue over. It's hard to allege that someone has violated a "voluntary" so-called "commitment."

The Obama Executive Order does away with that futile approach. It is true, as Tom states in his article, that the states' coalition has been preserved -- but only (let's hope) in name only. The power of the coalition has now been effectively transferred and, as Tom notes, this is a significant and "praiseworthy" development. It is telling, moreover, that no protests were registered by the various states over this action. Indeed, the states were pretty much requesting it, conceding the failure of the 26 years of the Chesapeake Bay Program coalition.

Southriver raises an excellent point that the EPA has always had an enforcement mechanism for water pollution in general -- the federal Clean Water Act.

Now the key will be for the EPA to start using this law to hold states accountable and make them keep their promises.

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