This week, CBF and our partners took the first step toward forcing the U.S. Environmental Protection Agency (EPA) to uphold the Chesapeake Clean Water Blueprint and ensure pollution reduction goals for the Chesapeake Bay are met.
Here’s what we did and why.
What action did we take?
On May 18, CBF, together with the Maryland Watermen’s Association, Anne Arundel County, and Virginia cattle farmers Jeanne Hoffman and Bobby Whitescarver, filed an official Notice of Intent to sue EPA. The reason is simple:
- EPA has failed to ensure the Bay jurisdictions will meet their pollution reduction commitments by the 2025 deadline.
- The agency’s failure is a violation of the federal Clean Water Act, the Administrative Procedure Act, and the 2014 Chesapeake Bay Agreement.
The Attorneys General of Maryland, Virginia, and the District of Columbia also filed a separate Notice of Intent to sue EPA.
How did we get here?
Eleven years ago, CBF sued EPA over its failure to uphold the Clean Water Act. The 2010 settlement of that lawsuit resulted in science-based pollution limits, known as a Total Maximum Daily Load (TMDL), designed to restore water quality in the Bay by 2025.
The TMDL allocates pollution reductions to each of the six Bay states and the District of Columbia. The Blueprint requires each jurisdiction to create and implement plans and milestones to achieve those reductions.
It is EPA’s job to hold the jurisdictions accountable and take action if they fail to provide plans that can legitimately meet their respective cleanup commitments. Each jurisdiction must demonstrate its clean water plan is thorough and supported by the necessary laws and funds to implement it.
Together, the limits, plans, milestones, and consequences form the Chesapeake Clean Water Blueprint.
The final plans submitted by Pennsylvania and New York last year have major problems. Pennsylvania’s plan would only achieve roughly 73 percent of its 31-million-pound nitrogen-reduction commitment, and by the state’s own analysis, it is underfunded by nearly $324 million a year. New York’s plan includes a nitrogen shortfall exceeding 1 million pounds annually and fails to adequately identify funding sources for meeting agricultural and stormwater commitments.
Despite these deficiencies, EPA did not require either state to revise their plans to achieve their pollution reduction commitments and took no steps to hold them accountable.
Why are we taking action now?
EPA approved the plans in December, despite repeated calls from CBF, citizens, and downstream states that it require Pennsylvania and New York to do more. Then, on Jan. 3, Dana Aunkst, the head of EPA’s Chesapeake Bay Program, suggested the targets are not enforceable and called the 2025 deadline “an aspiration.”
With only five years to go until the Blueprint’s 2025 deadline, EPA’s failure to do its job jeopardizes the success of the entire Bay cleanup effort and prevents the attainment of the fishable, swimmable waters guaranteed by the Clean Water Act. As a result, blue crabs, fish, oysters, underwater grasses, and other natural resources that fuel the economic engine of the Chesapeake Bay region are at risk.
What is the legal basis of our action?
EPA’s failure to undertake any significant backstop actions or impose consequences for the inadequate cleanup plans submitted by Pennsylvania and New York violates the Clean Water Act and flouts its obligation to hold jurisdictions accountable to their commitments under the Bay TMDL.
- Failing to require “reasonable assurance.” EPA can be held accountable under section 303(d) of the Clean Water Act for accepting the inadequate cleanup plans submitted by Pennsylvania and New York without requiring “reasonable assurance” that the plans will be successful. In a seminal court ruling in 2015 that reaffirmed the Bay TMDL, the U.S. Court of Appeals for the Third Circuit specifically held that such an approval would violate Administrative Procedure Act standards as arbitrary and capricious.
That holding is cemented by section 117(g) of the Clean Water Act, which outlines the Chesapeake Bay Program and imposes a mandatory duty on EPA to ensure that plans are developed to achieve and maintain the goals of the Chesapeake Bay Agreement—a pact between all Bay jurisdictions that in 2014 incorporated the pollution reduction goals of the Bay TMDL.
Pennsylvania and New York have developed plans, but those plans will not achieve or maintain the TMDL goals. Failing to require the states to put forward adequate plans therefore means EPA has violated the Clean Water Act.
- Violating the Administrative Procedure Act (APA). Under the APA, federal agencies cannot make decisions that are “arbitrary and capricious.” A decision is arbitrary and capricious if the agency relies on factors Congress did not intend it to consider, fails to consider an important part of a problem, offers an explanation for the decision that runs counter to evidence, or is extremely implausible.
EPA’s decision to accept cleanup plans that do not achieve the required nutrient reductions, and cannot fully be implemented because of inadequate funding, is arbitrary and capricious. The agency ignored ample evidence from the states and commenters, as well as its own staff, that the plans submitted by Pennsylvania and New York would not achieve the required nutrient reductions and water quality standards. As the Third Circuit held, “it would surely be arbitrary or capricious for the EPA to approve a plan that a state is incapable of following.” Neither Pennsylvania nor New York can follow a plan to meet their respective pollution reduction commitments without adequately identified sources of funding.
What happens next?
Filing a Notice of Intent is the first step in litigation to make EPA perform its critical oversight role.
The Clean Water Act requires providing EPA a 60-day notice to resolve issues before a lawsuit can be filed. CBF uses litigation sparingly, as a last resort, and we hope EPA will meet with us and resolve these claims outside of the courts. However, we are fully prepared to pursue legal action if EPA does not enforce the Clean Water Act and hold states accountable.
Why does this all matter?
The Chesapeake Clean Water Blueprint will only be successful if each jurisdiction meets its pollution-reduction goals in accordance with the Bay TMDL. This is especially true for Pennsylvania, and to a lesser degree New York, because the Susquehanna River provides roughly half of the Bay's fresh water as well as almost half of the nitrogen pollution.
The Chesapeake Bay is a national treasure, and clean water is essential to our region’s health, economy, outdoor heritage, and quality of life. If we want to save the Bay and leave a legacy of clean water to future generations, we must hold EPA accountable now.
Jon Mueller, Paul Smail, and Brittany Wright are representing CBF, MWA, and Jeanne Hoffman and Bobby Whitescarver. Anne Arundel County is represented by the Office of Law.