Today marks the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Restoration and Protection, which commits federal agencies to a new leadership role in Bay restoration. This morning the Federal Leadership Committee, headed by EPA and comprised of many of the major federal agencies, released its final Strategy for Restoration and Protection of the Chesapeake Bay. While the final Strategy is not significantly different from the draft Strategy, it contains new detail about a watershed-wide nutrient trading program and the independent evaluator.
Since the Order was issued, the federal government has promised to take a strong leadership role in compelling state governments to fulfill a series of broken promises, demanding that states establish deadlines for concrete action that would trigger economic consequences if missed. Given stunning failures in 2000 and 2010 to meet pollution reduction goals, EPA’s commitment to become the enforcer and not just the collaborator with respect to restoration efforts is a welcome—although long overdue—change. However, translating this commitment into action will be a challenge for EPA, which must stand ready to both provide assistance and impose tough consequences.
The developments this week kick off a series of milestones that will play out over the coming months. In August, Bay states and the District of Columbia will submit their Phase I Watershed Implementation Plans (WIPs), which will describe how states and the District will achieve their target pollution reductions between now and 2025. In December, EPA will finalize the Bay-wide TMDL, the largest TMDL to date. Meanwhile, in Congress, Senator Cardin is working on securing passage of the Chesapeake Clean Water and Ecosystem Restoration Act.
Collectively, these developments establish a system of accountability that has been missing from past restoration efforts. This accountability system is key: it means that grand but empty promises by states are no longer acceptable and that EPA and the FLC stand ready with both assistance and discipline for states that scoff at their responsibilities. Past Bay restoration efforts ended up being disappointments, leaving the Bay with staggering ecological devastation. We expect more under the leadership of EPA Administrator Lisa Jackson, and we expect today’s final Strategy to deliver. To succeed, the Obama Administration will need to continue to exercise leadership on this issue and be willing to hold the states accountable.
Full textToday the Center for Progressive Reform releases a briefing paper on Chesapeake Bay policy in anticipation of the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Protection and Restoration. The Choose Clean Water Coalition also today sent a letter to EPA Administrator Lisa Jackson stressing that EPA's strategy for the Bay must have robust requirements and tough consequences.
By next Wednesday, one year to the day after the Executive Order, the Federal Leadership Committee—made up of representatives from a range of federal agencies—is required to release its final Strategy for Restoration and Protection of the Chesapeake Bay. The final Strategy will integrate the draft reports issued under section 202 and the draft Strategy issued under section 203, all of which were previously released for public comment (See our comments from January). In the coming months, the future of Chesapeake Bay restoration will take shape. In addition to the release of the final Strategy, Bay states will begin to submit their preliminary Phase I Watershed Implementation Plans and EPA will finalize the Bay-wide Total Maximum Daily Load (TMDL). Collectively these developments promise to do what past Bay restoration efforts have not: to hold Bay jurisdictions and EPA accountable to specific commitments and hard deadlines. However, with much of the economy still in distress and a lack of resources in every Bay state, it is difficult to imagine that they will be able to consistently meet their commitments. In its new leadership role, EPA must distinguish between genuine efforts that fall short and intentional foot-dragging that fails to meet these commitments.
Full textThe Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes.
CEI has a problem with agency rulemaking altogether:
Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the principle of “no regulation without representation.”
First, CEI owes an apology to our revolutionary forebears for bending the notion of “no taxation without representation” into an anti-regulatory chant. And while I’m diverting, exactly who is without representation in this construction?
More significantly, long before agencies adopt regulations – and in many cases, a very long time before they adopt them – elected officials have already passed health and safety laws with instructions to the agencies on how rules are to be developed. In theory, the policymaking and political part of the process is supposed to end right there. The agencies are supposed to implement the law, applying whatever technical expertise is required in a way that’s consistent with Congress’s direction.
Full textIn preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:
Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions. One official noted that the Chesapeake Bay is a driver for enforcement because it gives MDE and Maryland a higher profile than other regions with less famous or less historically important waterways. Yet another environmental interviewee said that the long history of Bay restoration was an obstacle to an active and vigorous enforcement program. “The Bay restoration effort has been going on for so long now, and there’s a mentality that there’s nothing that will help all that much, so just plug away and be satisfied.”
Impartiality of State Courts. One surprising view to emerge from the interviews was a deep skepticism regarding the impartiality of state courts and the ability to obtain a fair trial at the state court level. At least five officials and environmental interviewees said that state courts were not the ideal venue to hear civil or criminal environmental enforcement actions. Some officials preferred administrative hearings, and some environmental interviewees expressed a preference for citizen suits because they are heard in federal court. One environmentalist said: “Some cases you can’t get anywhere in state court. You need to be in federal court.” Another alleged that state court judges are “unbelievably predisposed to defendants” and “hostile to MDE.”
Full textToday CPR releases a new report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short. The report, which CPR Member Scholar Robert Glicksman and I co-authored, details the results of an investigation of the Clean Water Act (CWA) enforcement program at the Maryland Department of the Environment (MDE). CPR provided a copy of this report to MDE, and its response (and CPR’s follow-up) is included as an appendix to the report.
Overall, we found that state of Maryland is failing to enforce existing water pollution laws, allowing illegal pollution that damages Maryland waters and the Chesapeake Bay. The report focuses on three specific areas:
The proverbial poop has hit the fan in Maryland this month after two environmental groups – the Assateague Coastal Trust and the Waterkeeper Alliance – sued Perdue Farms, Inc. and Hudson Farm, a Perdue-contract chicken factory farm in Berlin, Maryland, for violating the Clean Water Act. Water sampling from ditches next to Hudson Farm found high levels of fecal coliform and E. coli. Phosphorus and nitrogen – nutrients killing the Chesapeake Bay – were also found.
The two environmental groups are represented by pro bono student attorneys at the Environmental Law Clinic at the University of Maryland School of Law (where I was once a student; I should also note that CPR President Rena Steinzor is the former director of the clinic). The groundbreaking suit not only takes on a chicken farmer, it also targets Perdue – which contracts with farms throughout the state to raise the chickens it processes.
Perdue’s response? To cry "fowl," pardon the pun, of course. Instead of just fighting the lawsuit fair and square in court, Perdue also took its ruffled feathers to the Maryland General Assembly, pressing it to muzzle the student attorneys and send a message to the clinic. Perdue’s claims that the sky is falling have apparently worked. Last week, budget language approved by the Maryland Senate included a provision ordering the law school to produce a list of the clients it has represented over the last two years or lose funding – $250,000 in one version, $750,000 in another. Students take note: this is what happens when you take on the nation’s third-largest poultry company with $4.6 billion in sales annually.
Full textThis week Water Policy Report (subs. required) reported on EPA’s exercise of residual designation authority (RDA) over stormwater discharges and a pilot stormwater-reduction trading program in Massachusetts. Together, these actions have the potential to significantly reduce stormwater discharges into local waterways. If successful, this pilot trading program could be a template for similar trading programs in the Chesapeake Bay watershed and across the country.
Stormwater discharges occur when impervious surfaces such as roads, rooftops, and parking lots channel high volumes of contaminated water into a nearby waterbody. In the absence of impervious surfaces, the water would be absorbed or stored in the ground and then slowly released back into the water cycle. EPA implemented two phases of stormwater regulation in 1990 and again in 1999. Today, three categories of stormwater are regulated: certain municipal separate storm sewer systems (MS4s) that serve populations of 100,000 or more or that serve populations of less than 100,000 in certain urbanized areas; construction activities that disturb one or more acres; and certain industrial activities.
EPA may also regulate stormwater by exercising its “residual designation authority” (RDA), found in CWA sections 402(p)(2)(E) and (p)(6). These sections allow EPA or the state authority to require NPDES permits for specific stormwater discharges known to present the most significant threats to surface water but that do not fall the two categories described above. A discharge that is entirely composed of stormwater may require a NPDES permit if the EPA Administrator or state agency determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. Section 402(p)(6) also directs the Administrator to designate stormwater discharges to be regulated to protect water quality. A NPDES permit writer may consider factors such as the location of the discharge, the volume of the discharge, the quantity and nature of pollutants, and other relevant factors.
Full textYesterday, the White House released a plan to restore Mississippi and Louisiana wetlands and barrier islands, which have been disappearing at a rapid clip for decades and continue to do so. Hurricane Katrina brought to the fore what many residents of these states already knew: federal, state, and local authorities were neither coordinated nor prepared to protect the Gulf Coast, its ecosystems, and its people from Mother Nature’s worst. (See CPR's report on Katrina).
The White House roadmap is designed to bring some much-needed order and leadership to Gulf Coast restoration efforts. It’s a strong sign from the Obama Administration that it is serious about protecting the Gulf Coast.
The roadmap also strives to put ecosystem restoration and sustainability “on a more equal footing with other priorities such as manmade navigation and structural approaches to flood protection and storm risk reduction.” It rightly notes that these priorities make up complex pieces of a larger whole: wetlands protect inland ecosystems and communities from dangerous storm surges, for example; bayous, bays, and estuaries produce much of the fish and wildlife that coastal fishermen and communities depend upon for their livelihoods. The elevation of these “ecosystem services” to having “value” on par with priorities such as river navigation is a heartening sign.
Full textThis post is the third in a series on the new CPR report Obama’s Regulators: A First-Year Report Card.
The Environmental Protection Agency (EPA) is the biggest and most powerful of the protector agencies. Consequently, it has also become the agency that was most decimated by regulatory opponents in recent decades. Thus, when President Obama assumed office in January of 2009, he inherited an EPA with its confidence severely dented, but otherwise eager to get back to the important work of protecting people and the environment. As CPR found in its new report, EPA’s performance this past year reflected this disposition: the agency steamed ahead on many important issues, but approached certain controversial issues with visible trepidation.
Looking back, it’s hard not to be impressed by the breadth of EPA’s accomplishments this past year. The agency took protective actions in several areas including toxics reform, chemicals screening, ground level ozone, sulfur dioxide, lead air pollution monitoring, managing hazardous waste, and protecting children’s health and safety. EPA’s most impressive actions, however, came in the areas of climate change and Chesapeake Bay restoration.
Full textOver the weekend, the Associated Press ran a story on the results of its enterprising investigation into the toxic content of children’s jewelry imported from China. Pressed to abandon the use of toxic lead in toys and jewelry, manufacturers have apparently begun using an even more dangerous metal, cadmium, which can cause neurological damage – brain damage – to children and give them cancer. AP tested 103 pieces of jewelry bought in American stores within the last few months, and found that 12 percent contained at least 10 percent cadmium. One item, a cute little Rudolph the red-nosed reindeer trinket, was 91 percent cadmium.
Addressing the question that leaps to mind – How did these extraordinarily dangerous trinkets get onto store shelves in the first place? – reporter Justin Pritchard writes these utterly terrifying and completely truthful words:
A patchwork of federal consumer protection regulations does nothing to keep these nuggets of cadmium from U.S. store shelves. If the products were painted toys, they would face a recall. If they were industrial garbage, they could qualify as hazardous waste. But since there are no cadmium restrictions on jewelry, such items are sold legally.
Of course, this is just the latest in a series of startling tales of dangerous products making it to market in the United States – poisoned peanut butter, toxic drywall, lead-painted toys, and more. Not to put too fine a point on it, but such products often kill people – sometimes immediately, from acute exposure to toxins, and sometimes over a longer period of time by way of cancer. If folks are lucky, their lives simply become miserable, with headaches, nausea, respiratory and heart problems a daily occurrence.
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Guest Blogger: Liz Borkowski