CBF Preparing to Sue EPA

(ANNAPOLIS, MD)—For years, the Chesapeake Bay Foundation (CBF) has been concerned about the lack of progress in reducing nitrogen pollution in Pennsylvania. That concern was heightened when Pennsylvania released its plan for reducing pollution between now and the 2025 deadline. The plan has a funding shortfall of more than $300 million annually. And even if the money were allocated, the plan falls 25 percent short of the nitrogen goal.

In 2009, CBF and partners sued the federal Environmental Protection Agency (EPA) for its lack of enforcement of the Clean Water Act in the Chesapeake Bay region. A year-long negotiation between CBF and EPA ensued. It culminated with the Obama Administration’s EPA developing a Bay watershed-wide Total Maximum Daily Load, a limit on the pollution the Bay can withstand and remain healthy. CBF agreed to drop the suit and the Chesapeake Clean Water Blueprint was launched, with a goal of having the programs and practices in place by 2025 that will lead to a restored Bay. All the Bay states, the District of Columbia, and EPA endorsed the pollution reductions and agreed to an allocation formula in which each jurisdiction promised to reduce its share of nitrogen, phosphorus, and sediment pollution.

The Clean Water Blueprint set pollution limits for each state to achieve, requires state plans to achieve the goals, and requires two-year incremental steps, called milestones, so that progress can be measured. EPA committed to evaluating the plans, as well as progress made toward the two-year milestones. EPA also laid out the consequences it could impose if any jurisdiction delivers inadequate plans or falls short on its milestone commitments.

That EPA failed to take any action to impose consequences for Pennsylvania’s inadequate plan last month is deeply disturbing and puts the success we have seen over the last ten years in jeopardy. Even more troubling, the Director of the Chesapeake Bay Program, Dana Aunkst, recently said that the goals were aspirational and not legally enforceable.

In response, CBF Vice President for Litigation Jon Mueller issued this statement:

“The Chesapeake Bay Foundation is preparing a Notice of Intent to Sue EPA for failing to enforce the Clean Water Act. We are currently in discussion with a range of potential partners concerning the legal strategies we can use to force EPA to comply with the law. For CBF, litigation is a last resort. However, with Bay restoration and clean water for future generations at risk, we have no alternative due to EPA’s failure to act. We must hold EPA accountable now if we are going to save the Bay.”

CBF President William C. Baker added:

“That EPA is abdicating its responsibility under the Clean Water Act is a tragedy. Failing to hold Pennsylvania accountable undermines the success we have seen in recent years. It is snatching defeat from the jaws of victory.
“Agriculture is the largest source of pollution from Pennsylvania. While farmers and Conservation Districts have demonstrated their willingness to install practices that reduce pollution, the Commonwealth’s elected officials have failed to provide sufficient cost-share funding to achieve the goals that Pennsylvania has repeatedly promised to reach by 2025. If EPA does not fulfill its responsibilities to the region’s residents and the American public by holding the Commonwealth accountable, Pennsylvania’s local waters and the Bay downstream will never be saved.”

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