A national treasure, the Chesapeake Bay is the largest estuary in North America, home to more than 3,600 species of plants and animals. The Chesapeake Bay watershed – the land that drains into the Bay – encompasses parts of six states and Washington, D.C. Unfortunately, the Bay has been deteriorating since the 1930s, when water clarity, crab and oyster populations, and underwater bay grasses began to decline. Excess nutrients – phosphorus and nitrogen – and sediment runoff from agriculture, urban and suburban development, and sewage treatment plants caused the Bay’s cloudy waters, resulting in “dead zones” containing too little oxygen to support aquatic life. The Bay’s oyster and blue crab populations have suffered as a result.
One reason for this steady deterioration of the Bay is the failure of public officials across the region to enforce pollution standards. In 1983, in response to increasing public concern about the state of the Bay, Maryland, Virginia, Pennsylvania, the District of Columbia, West Virginia, New York, and Delaware joined with the EPA in creating what is now the nation's oldest estuary restoration program. Since then, the Bay Program partner states have made a series of commitments about their states' efforts to clean up the Bay.
Unfortunately, many of those commitments have gone unfulfilled.
EPA Steps Up; Will the States?
In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on the Bay cleanup. The following year, the EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a sort of pollution budget for the Bay states.
Faced with a federal commitment, the states began work on complying with the TMDL requirements. One Bay-wide approach under consideration is a Water Quality Trading regime that would allow polluters to trade pollution credits.
A May 2012 report from CPR's Chesapeake Bay experts warned, however, that such an approach has largely failed elsewhere, and that the success or failure of a Chesapeake Bay trading regime will rest on whether the system meets a number of threshold criteria, including:
Broad participation in the program, including from "nonpoint" pollution sources;
Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings;
Resources from the states sufficient to operate an accountable trading regime in all its complexity;
Rules that avoid pollution hot spots;
A continuation of traditional regulatory controls that would create an incentive for participation in the program;
Transparency from EPA and the Bay states, so that compliance can be monitored by all.
In August 2012, CPR's Rena Steinzor, Rob Verchick, Nick Vidargas and Yee Huang issued a report exploring the environmental justice implications of a water quality trading regime in the Chesapeake, concluding that in the absence of specific safeguards, the approach could result in pollution "hot spots" that took a disproportionate toll on the region's poor and minority residents. Read the news release.
Maryland's Criminal Enforcement of Water Pollution Laws: Letting Polluters Off Easy?
One key to cleaning up the Bay is effective enforcement of existing pollution laws. CPR's Member Scholars have carefully examined the Bay states enforcement efforts and written white papers detailing their findings. In April 2013, Member Scholar Robert Glicksman and Policy Analyst Aimee Simpson issued No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies(CPR Briefing Paper 1305), which explored whether the states' penalty structures allowed polluters to profit from violating the law, even if caught and penalized. Their conclusion: The Bay states need to amend their existing laws and policies to make sure that polluters get no economic benefit from noncomliance with the law. The briefing paper also calls for greater transparency concerning existing penalty assessments. Read the report, and the day-of-release blog post by Glicksman and Simpson. (Read a day-of-release blog post by the authors.)
In September 2012, CPR released a report by Member Scholar Rena Steinzor and Policy Analyst Simpson evaluating Maryland's criminal enforcement efforts. As the report notes,
Typically, environmental enforcement involves civil or administrative actions, which primarily result in monetary fines. Criminal enforcement, on the other hand, can lead to much more serious penalties, like incarceration, extensive probationary periods, license suspensions, and debarment. The prospect of going to jail and acquiring a criminal record has a higher deterrence value than monetary civil penalties, which are often factored into bottom-line business costs....
After gathering and analyzing data from a variety of sources, we conclude generally that criminal prosecution of water pollution violations at both the state and federal levels in Maryland is an underutilized enforcement tool.
In June 2012, CPR's Rena Steinzor and Yee Huang examined the impact of factory farming operations--concentrated animal feeding operations (CAFOs)--on the Chesapeake Bay, and concluded that a series of regulatory reforms were in order. Unlike human waste, manure from CAFOs is usually spread onto land untreated. From there, it can flow into Bay tributaries, still untreated, and then to the Bay. As a result, the two states accounts for an outsized share of several types of pollution in the Bay, including significant percentages of nitrogen, phosporous and sediment.
Among the reforms proposed in Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania: Speedier review of pollution permits by state environmental agencies, rigorous inspections of polluting facilities, and fines for violations that are large enough to serve as a deterrent rather than a nuisance. In addition, the report calls for the states to treat large chicken and hog processing companies that have substantial control over a CAFO in the state — such as Tysons, Perdue, and Smithfield — as subject to Clean Water Act permitting requirements.
Steinzor on WYPR. Listen to CPR President Rena Steinzor discuss the Abell Report article and the future of the Bay on WYPR Radio in Baltimore, with Maryland State Department of the Environment director Robert Summers and Rona Kobell of the Bay Journal.
Not So Fine: CPR Report on Clean Water Fees and Fines. Among the states in the Chesapeake Bay region, Maryland enjoys a reputation for being the most aggressive in enforcing Bay pollution requirements. You wouldn't know it from the state's structure for pollution fines and fees, according to a CPR report, Back to Basics: An Agenda for the Maryland General Assembly to Protect the Environment, by CPR President Rena Steinzor and CPR Policy Analyst Yee Huang. The paper recommends that the state’s legislature better protect the environment by providing MDE with the fees and fines structure it needs to operate its programs and to restore the full deterrent effect of its enforcement program. The paper was released at "A Time for Action: Accountability in the Chesapeake," a conference cosponsored by CPR and the Univeristy of Maryland Francis King Carey School of Law on October 21, 2011.
One Year After the Obama Order. In May 2010, CPR Member Scholar Rena Steinzor, Executive Director Shana Jones and Policy Analyst Yee Huang issued a briefing paper offering recommendations for assessing progress on state clean-up efforts. Read the briefing paperand the blog post.
The Cardin Bill. In November, Sen. Ben Cardin (D-MD) offered legislation to require cleanup of the Bay. CPR Member Scholar Rena Steinzor, Executive Director Shana Jones and Policy Analyst Yee Huang applauded the bill, but offered suggestions for tightening key elements in a November 9 letter to Cardin. Yee Huang described the letter in a CPRBlog posting. On November 23, 2009, a distringuished group of scholars, including a number of CPR Member Scholars, sent a memo to Senator Cardin assessing the constitutionality of the proposed measure, and debunking constitutional arguments by opponents of tighter cleanup requirements. Read the memo. Read the bios of the signers. Read Yee Huang's blog post on the memo.
Comments on Draft Water Quality Report for the Chesapeake Bay. CPR Policy Analyst Yee Huang's comments on EPA's draft 202a Water Quality Report & 203 Strategy for the Chesapeake Bay, January 8, 2010.
Blog Posts. CPR Scholars and staff have blogged extensively on the Chesapeake Bay cleanup effort, discussing the problem itself, the failure of the states' efforts to clean it up, the Obama Administration's initiatives, and proposed legislative fixes. Read the posts, here.
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