The Chesapeake Bay's Future is on Trial Tomorrow
Menhaden – Small Fish, Big Decisions

Court Decision Will Decide Bay's Future

GavelIStockNow the Bay’s best hope is in a judge’s hands.

Yesterday, the U.S Department of Justice, EPA, Chesapeake Bay Foundation, and municipal waste treatment plant operators were on the same side in U.S. District Court in Harrisburg, Pennsylvania, arguing that Judge Sylvia H. Rambo should keep in place new federal pollution limits for the nation’s largest estuary.

On the other side were the American Farm Bureau Federation, fertilizer manufacturers, homebuilders, and other industry lobbying groups that filed a lawsuit asking court to throw out the EPA pollution limits for the Bay.

Judge Rambo will now issue a decision, although she did not specify on what date.

The plaintiffs in American Farm Bureau vs. EPA claim that the federal agency exceeded its authority in issuing the pollution limits in December 2010, which inspired the Bay region states to issue detailed plans to cut pollution that are like blueprints for saving the Bay.  Nitrogen and phosphorus pollution that cause algal blooms and low-oxygen “dead zones” must be cut by 25 percent by 2025 under the plans.

During five hours of highly technical arguments in U.S District Court yesterday, Kent Hanson, a U.S. Department of Justice attorney representing EPA, explained that the federal agency, in issuing the pollution limits in December 2010, was clearly acting within what Congress intended when it passed the federal Clean Water Act in 1972.

“Congress gave EPA a specific role to look at what the states were doing,” Hanson told the court, “and to take action when necessary to make sure that water quality is protected.”

The Bay region states missed deadlines in 2000 and 2010 to significantly reduce pollution into the Chesapeake.  But when it became clear in 2007 that the states would miss this second target, the states asked EPA to step in and develop federal Bay pollution limits.

EPA worked closely with the states to create these limits.  And by issuing the limits, EPA also complied with judicial orders from lawsuits that environmental groups filed in the 1990s asking EPA to step in because the states had failed to issue pollution limits on their own.

The Farm Bureau and allies argued in court yesterday that cleaning up the Bay is a state responsibility. “EPA overstepped its bounds,” said Richard Schwartz, an attorney for the plaintiffs.

But Judge Rambo questioned this, noting that Congress has recognized the multistate nature of the Bay watershed, which covers much of six states and the District of Columbia.  “The Chesapeake Bay is an ecosystem that ignores state boundaries,” Rambo said.

Later, Rambo pressed the plaintiffs on what, exactly, they objected to in the EPA pollution limits – whether they were too detailed, or perceived to be a problem because they suggest a federal mandate.  “I'm not sure what your argument is,” Rambo said.

Schwartz replied:  “We think…EPA is exceeding its statutory authority.”

Schwartz and other attorneys for the plaintiffs also questioned the accuracy of the computer modeling used by EPA to create the pollution limits.  But representatives of the federal agency explained that the statistical model was peer reviewed by scientists and continues to be improved.

In addition, the Farm Bureau and its allies argued that EPA had not allowed enough time for public comment before it issued the pollution limits.

Jon Mueller, CBF’s Vice President for Litigation, explained that EPA had held numerous meetings over several years on the pollution limits, working cooperatively not only with officials from the Bay region states, but also meeting with representatives of the farming community and many others.

EPA received and considered more than 14,000 comments from the public before issuing the pollution limits.  “EPA was very upfront about this,” Mueller told the court. “This wasn’t something done in a dark room.”

To conclude his presentation to the court, Mueller showed photographs of watermen on Tangier Island in the Chesapeake Bay whose livelihoods have been damaged by water pollution.   They are emblematic of thousands of workers in seafood-related industries whose economic security is at risk if the EPA and Bay region states fail to work together to restore the Chesapeake Bay to health.

“We kind of forget the impact on people,” Mueller.  “These men get up in the predawn hours to catch crabs….And their lives are completely dependent upon water quality.”

The defense and implementation of the EPA pollution limits, and state cleanup blueprints, mark a critical moment in the fight to save the Bay.  To learn more, click here.

By Tom Pelton

Chesapeake Bay Foundation


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