By JUSTINE MCDANIEL
WASHINGTON (Feb. 28, 2014)—Three weeks after 21 states signed on to a lawsuit challenging the Environmental Protection Agency’s Chesapeake Bay pollution limits, more than 25,000 people have signed a petition condemning the suit.
The Chesapeake Bay Foundation petition has garnered an unusually high response from the public in the 23 days since the attorneys general from states such as Florida, Kansas and Alaska filed an amicus brief in support of the lawsuit.
“It’s quite a statement of the public’s interest in this issue,” said Kim Coble, the Bay Foundation’s vice president for environmental protection and restoration.
The lawsuit, filed by the American Farm Bureau Federation, the Pennsylvania Farm Bureau, the National Association of Home Builders and other related industry groups, challenges pollution limits set by the EPA under the Clean Water Act (CWA).
The Chesapeake Bay Foundation and several partners sued the EPA in 2009 asking a federal court to require the agency to reduce pollution in the bay after it became clear states wouldn’t meet a cleanup goal they agreed to in 2000. As part of the settlement, the EPA created pollution limits in 2010, which the Chesapeake Bay Program refers to as the bay “pollution diet.”
Each state in the Chesapeake Bay watershed created cleanup plans to reach the pollution diet goals. The EPA can impose consequences on states that fail to reach them by designated two-year milestones.
Efforts by Maryland and other states to restore the Chesapeake Bay have been underway since 1983. The Chesapeake watershed includes all or parts of Maryland, Delaware, Virginia, West Virginia, Pennsylvania, New York and the district.
The 21 states opposed to the plan question the EPA’s authority to impose pollution limits, also known as Total Maximum Daily Loads or TMDLs, saying the agency is violating states’ rights.
“EPA’s untenable interpretation of its authority under the CWA has unlawfully usurped States’ traditional authority over land-management decisions,” the attorneys general wrote in their amicus brief, filed February 3.
The Bay Foundation’s Coble said the arrangement with the EPA is the best approach to cleaning up the bay and gives states the autonomy to decide how to meet EPA goals. It has been very successful so far and the Pennsylvania court found no evidence of federal overreach, she said.
“This lawsuit, the appeal of the decision and the friend-of-the-court brief that has been filed threatens and potentially ends the success that we’ve been seeing with the cleanup plan. There’s a lot at stake,” Coble said.
Nitrogen levels in the bay decreased by 18.5 million pounds between 2009 and 2012, a reduction that represents a quarter of the long-term goal, said Rich Batiuk, associate director for science with the EPA Chesapeake Bay Program office.
Nitrogen is one of the top three bay pollutants, and it comes from many everyday human activities. An excess of nitrogen can disrupt the bay’s system, harm drinking water and lead to habitat loss, Batiuk said.
“There are over 17 million of us that call the Chesapeake Bay watershed home… Life in the mid-Atlantic is really so intricately tied into the Chesapeake Bay and its hundreds and hundreds of rivers and streams,” he said.
The lawsuit opposing the pollution diet originated in 2010 and was struck down in federal court in Pennsylvania in September. The Farm Bureau and associated parties appealed to the 3rd U.S. Circuit Court of Appeals, and all parties will have filed briefs in the appeal by the end of April.
The opposed states, some of which have major natural resources of their own, like the Lake Michigan and Florida Everglades watersheds, said they want to regulate land use within their own borders.
“(T)his case has far-reaching implications for States across the country,” they said in the brief. “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.”
In Florida, the state is working with the EPA and using state and federal money to fund restoration of the Everglades. State officials signed a long-awaited $880 million deal with the federal government last year.
All the states whose attorneys general signed the brief are outside the Chesapeake Bay watershed except West Virginia, whose Republican attorney general, Patrick Morrisey, replaced Democrat Darrell McGraw, who was in office when the cleanup agreement was approved.
The attempt by out-of-region states to influence the Chesapeake and the appeal of what Coble called a “very, very strong, legal, solid decision” make this conflict a singular struggle in the bay’s history, she said.
“There’s, needless to say, many challenges with the work of restoring the bay, but this one’s unique,” Coble said. The circumstances “make the situation much more urgent than other challenges we’ve had.”