The best hope for saving the Chesapeake Bay goes on trial tomorrow. The Chesapeake Bay Foundation will be standing beside the U.S. Environmental Protection Agency in federal court in Pennsylvania, defending new federal pollution limits for the nation’s largest estuary.
On the other side of U.S. District Court Judge Sylvia H. Rambo’s courtroom in Harrisburg, Pennsylvania, the American Farm Bureau Federation, the Fertilizer Institute, and other industry lobbying groups are seeking to overturn pollution reduction targets that EPA created in December 2010.
The limits call for an approximately 25 percent reduction in nitrogen and phosphorus pollution entering the Bay by 2025. State plans to meet these limits are like blueprints for restoring the Bay's health. These plans are driving investments in pollution control projects, such as upgrades to sewage treatment plants, construction of stormwater control systems, and the planting of trees and vegetation along streams on farms to reduce runoff of fertilizer.
So what are the arguments against the Bay pollution limits?
The Farm Bureau and its allies have attacked the limits based in part on the claim that EPA has exceeded its authority. Setting these kind of pollution limits, they claim, is a responsibility that should be left up on the states.
The problem with this assertion is that it ignores both the federal law and history. The federal Clean Water Act, passed in 1972, requires states to develop pollution limits for waterways that suffer from excessive amounts of pollution. But for years, the states failed to develop these limits, and so environmental groups sued in the 1990s. The resulting judicial orders required EPA to step in and develop pollution limits for the Bay.
In addition, the Bay region states missed deadlines for cleaning up the Chesapeake Bay in 2000 and 2010. Recognizing that the states individually could not control all of the upstream sources of pollution, the states in 2008 asked EPA to develop pollution limits for the entire Chesapeake Bay watershed by 2010.
So EPA’s Bay pollution limits, finally released in December 2010, did not materialize from thin air, or from a whim of the White House. The limits were mandated by the federal law and court decisions, and requested by the Bay region states.
The opponents of the Bay pollution limits also claim the scientific models used by EPA are flawed. The Farm Bureau tries to discredit EPA’s Bay Watershed Model, even though it has received extensive scientific peer review and is one of the most sophisticated in the world, by comparing it to a watershed model used by the U.S. Department of Agriculture. These two statistical models of the Bay operate differently, however, and comparing them is like comparing apples to oranges.
The plaintiffs in American Farm Bureau et. al. v. EPA (Case No. 11-cv-00067-SHR) assert that the federal agency failed to provide enough time for public comment on the Bay pollution limits. In fact, however, EPA and the Bay region states held numerous public meetings over a period of years before the final limits were released, and EPA received and considered more than 14,000 public comments. It was a very open process.
The hearing scheduled for tomorrow morning is only on motions for summary judgment, and is not technically a trial. But the claims outlined in court papers cover all the legal arguments in the case, and Judge Rambo could decide the whole case, based on these motions.
This legal battle is critically important, because the EPA pollution limits are landmarks in the nearly half-century history of the Chesapeake Bay restoration effort. Through these limits, the Bay region states are finally being held accountable and must follow detailed plans to restore the nation’s largest estuary.
Continued pollution problems in the Bay have imposed huge costs on our region. These costs include the loss of thousands of jobs in seafood-related industries, human health risks, destruction of a valuable ecosystem, loss of waterfront property values, and damage to our quality of life.
On the other hand, when state and local governments build projects to comply with the pollution limits, they create jobs for construction workers, engineers, and others –- including for projects such as upgrades to sewage treatment plants and for the construction of stormwater control systems. In these two areas alone, an estimated 240,000 jobs will be created over the next decade from investments to meet the EPA pollution targets, according to a Chesapeake Bay Foundation report.
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By Tom Pelton
Chesapeake Bay Foundation