Bay cleanup gets a lift

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

Baltimore Sun - - MARYLAND VOICES -

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.

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