CHESAPEAKE BAY:

Green groups challenge EPA restoration plan's trading program

One day before U.S. EPA's landmark plan for cleaning up the Chesapeake Bay faces an industry-led challenge in a Pennsylvania federal courtroom, a rift has broken open in the environmental community, with a pair of green groups announcing a lawsuit of their own.

At issue are provisions in the plan authorizing water quality trading programs -- essentially cap and trade for water -- that would allow water polluters that clean up their discharges beyond mandated limits to sell their excess pollution reductions to other entities. For instance, a farmer who took steps to reduce pollution washing off cropland could sell credits to operators of a sewage treatment plant.

Food and Water Watch and Friends of the Earth this morning announced they are filing a lawsuit against EPA in federal district court in Washington, D.C., over the provisions.

"We are convinced that letting the market determine the future of our waterways is not only a violation of the very letter and spirit of the Clean Water Act, but that it can only result in worsening water quality in the Chesapeake Bay and across the country," Scott Edwards, co-director of Food and Water Watch's Food and Water Justice program, said on a call with reporters this morning. "It allows for a system of false credits, fraud and manipulation that has already proven rampant in many other environmental trading schemes."

The programs have the support of high-profile environmental groups including the Chesapeake Bay Foundation, as well as its oft-foe the American Farm Bureau Federation. But a small but vocal segment of the environmental community has come out in opposition to the system, arguing that it is ripe for abuse, has little impact on water quality, and stands to leave low-income and minority communities with the most pollution (Greenwire, May 8).

Today's lawsuit has been years in the making, but it nearly unraveled this spring when a top financial supporter of the Potomac Riverkeeper, an original member of the coalition, threatened to shut its wallet if legal action were taken (Greenwire, April 30). The suit filed today includes no local environmental groups as plaintiffs and is moving forward with new legal representation from Columbia Law School's environmental law clinic.

Supporters of EPA's efforts fear that after three decades of failed cleanup attempts, a legal challenge now could undo the agency's ambitious restoration plan. The bay is choking on phosphorus, nitrogen and sediment, and EPA's first-ever watershedwide plan institutes a "pollution diet," or total maximum daily load (TMDL), aimed at getting the bay on the path to full recovery by 2025.

The Chesapeake Bay Foundation was not available to comment by publication time, but its president this spring expressed concern that two lawsuits challenging the plan from different ends could undermine it.

"We heard from a number of attorneys that when you have two pieces of federal litigation both supporting the same thing ... they join together, and we thought that would have been terrible," Will Baker told the Washington Post.

Edwards emphasized, however, that his group's legal challenge is narrowly aimed at stripping trading out of the plan.

"Our goal is not to vacate the TMDL; our goal is to get rid of trading," he said. "These are two very, very different pieces of litigation, and they're not unlike any other piece of environmental litigation. When EPA makes a final rule, the typical approach is for industry to come in on one side of it to weaken it and for the environmental community to come in from the other side and make it stronger."

Edwards said he sees it as unlikely that his group's suit could be joined with the Farm Bureau suit, because the latter has progressed significantly, but he acknowledged it is a possibility.

Where some environmental groups see trading as the bad seed in a good plan, the Farm Bureau sees trading as one of the cleanup plan's few bright spots.

Don Parrish, senior director for regulatory relations at the bureau, said his group supports trading in concept as a way to bring market efficiencies to a process that is fraught with inefficiencies.

"EPA's policies have effectively capped economic and social activities within the Bay watershed," Parrish said by email. "With this litigation, the environmental community is saying that the TMDL requires government policies to shrink economic and social activities in order to expand environmental benefits."

Industry lawsuit

The green groups' lawsuit comes just ahead of arguments in an industry challenge to the EPA plan, scheduled to be heard tomorrow by federal Judge Sylvia Rambo of Pennsylvania's Middle District.

The suit, brought by the Farm Bureau and the National Association of Home Builders, accuses the agency of micromanaging states under the bay plan, relying on flawed modeling to set pollution reduction targets in the TMDL and not allowing enough time for public comment in advance of the new regulation.

Industry is concerned not just about the Chesapeake Bay cleanup plan, but also about the prospect that it could become a model for future systems to restore sprawling, multistate waterways, most notably the Mississippi River Basin.

The Clean Water Act does not allow the federal government to regulate pollution from nonpoint sources such as farm fields and construction sites, although states do have the authority. The Farm Bureau's suit contends that EPA's bay plan oversteps that boundary, but green groups say the plan leaves the work up to states.

The lawsuit represents just one front in industry's battle against the EPA program. Multiple pieces of legislation moving through Congress would block funding or otherwise modify the program.

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