Bay cleanup gets a lift

Our view: Supreme Court decision keeps EPA Chesapeake restoration on track

The U.S. Supreme Court has become such an object of scorn since the death of Justice Antonin Scalia — his passing having inspired an apparent Senate Republican takeover of appointment authority and the resulting 4-4 political split potentially leaving the court in the kind of do-nothing posture one associates with tree sloths and Congress — that a favorable ruling can easily go unnoticed. Such may be the case with the Supreme Court’s decision Monday not to take up a high-profile challenge to the Chesapeake Bay cleanup plan.

Yet that one simple choice might be the biggest victory the cleanup effort has witnessed since 2010 when the U.S. Environmental Protection Agency first established the Total Maximum Daily Load, or TMDL, the so-called pollution diet. Put simply, under the TMDL, the EPA sets maximum amounts of pollution — chiefly nitrogen, phosphorus and sediment — that can flow into the Chesapeake and holds states accountable for meeting those targets.

That arrangement was challenged by the American Farm Bureau and others on the grounds that EPA lacked the authority for such a sweeping program (involving no fewer than six states and the District of Columbia). Farmers and their allies feared that the EPA would look to duplicate this arrangement elsewhere across the country, regulating runoff from farm fields, for example, much more stringently than has been done by states.

The beauty of the TMDL is that it still leaves the regulatory process in the hands of states and local governments. It’s up to them to develop Watershed Implementation Plans and demonstrate how they will lower pollution by 2025. Those areas that fail to meet targets (and an important deadline is already popping up in 2017) will then face sanctions from the EPA.

The court’s decision should not have been a surprise — the lawsuit had lost at every level of the federal judiciary beginning with U.S. District Court Judge Sylvia Rambo’s rejection of it in 2013 and followed by the 3rd Circuit’s endorsement of her decision in 2015. But the Supreme Court’s unexpected move last month to grant a stay of the Clean Power Plan — the EPA’s effort to reduce greenhouse gas emissions from coal-fired power plants — added a layer of uncertainty to the review. That the Supreme Court on Thursday rejected another anti-EPA lawsuit, one that sought to neuter regulations to lower emissions of mercury and other toxics from power plants, is a further sign that the nation’s highest court is still respectful of legal precedent even in such a contentious and often partisan field as environmental protection.

So what’s next? Maryland must continue to find ways to reduce the flow of pollution into the nation’s largest estuary. Regulating agriculture is clearly part of that mix — farming represents the largest single source of polluted runoff — but there are many other sources as well. Just last week, an estimated 12 million gallons of raw sewage was released into the Jones Falls when the system became overloaded by heavy rains. The incident underscores the need to move forward with the city’s overdue sewage infrastructure upgrades, a 13-year-old project that was supposed to be completed by now under a consent decree.

But Baltimore is not alone. There are many other sources of pollution that need to be addressed, from the harmful toxics and sediments carried by stormwater (the reason why the much-reviled “rain tax” was necessary in the first place) to the need to preserve open space and encourage “smart growth” development. Maryland has made progress in many of these areas — often with more help from Gov. Larry Hogan than environmentalists expected, given his campaign trail rants against the rain tax — but much more needs to be done.

How much easier those efforts will be, however, now that it’s clear that all the jurisdictions in the sprawling 64,000-squaremile watershed will be held accountable. Had the Supreme Court ruled differently, it would have been a huge blow — not only to water quality but to the extraordinary multibillion-dollar financial asset the Chesapeake Bay represents. Make no mistake, pollution regulations are bound to be contentious — just ask the poultry industry, which is currently squawking in Annapolis about who should pay the bill for chicken manure — but now that we know the blueprint for how to restore the Chesapeake isn’t going away, there is a ray of light on the bay’s horizon.