Commitment-phobia: Why Shy Away from Cleaning the Bay? by Payton Brown

February 2^nd, 2014: A brief issued by 21 states was issued in support of the appeal by American Farm Bureau (AFBF), The National Association of Homebuilders and other groups. The AFBF, et al. appeal was filed on January 27^th, 2014 and may be arguing the same or similar talking points as their lost 2010 suit against the EPA for regulating nutrient loading into tributaries of the Chesapeake Bay. Some articles on the matter are linked: The Washington Post, The Bay Journal, Farm Futures. And now that we’re caught up a little…

There is no doubt that it is well within the rights of the AFBF, et al. to appeal the ’10 court decision upholding the EPA’s plan for the Bay and the policies of the EPA to protect the Chesapeake Bay. If upheld, the plan for the Bay will likely influence national policies that regulate the environmental impact on other bodies of water in the US. The plan positively affects markets (tourism, fisheries) within the states in the watershed and, in turn, whomever participates in those markets (e.g. potentially the whole nation). This, falling under the commerce clause (Article I, section 8 of the Constitution) is a huge justification for the Clean Water Act, which the EPA’s plan for the Bay is based under.

The AFBF, et al. argues that markets, such as development and agriculture, may be negatively affected more than others by the plan. This is because they contribute a significant amount of non-point source nutrient pollution entering the Bay. And it is the EPA’s hope to cut this pollution back and to not exceed a watershed’s total maximum daily load (TMDL) of pollutants. TMDLs are standards created  for the EPA by modeling nutrient loading; these models traditionally use parameters and processes such as water flow and efficiency of nutrient cycling. And nutrient pollution (nitrogen and phosphorous primarily) is the main cause of the relatively recent decline in the Bay (e.g. algae blooms, dead zones, functional extinction of eastern oyster, loss of natural nursery grounds).

The EPA points out that the suit against them and following appeal concerning the plan for the Bay is slightly out of place. This is because EPA plans are made available to the public for consideration and comments before it is enacted. I have even seen that they have made changes to their plans based on public input, even since I have become somewhat aware of my political surroundings (e.g. changing of EPA’s carbon emission policy for powerplants). Everyone could have had a say before 2010, so what is the larger reason for the appeal?

It could simply be easier for opponents to let the EPA make a plan and have it deemed unconstitutional, and repealed, thus setting a precedent for little or no EPA involvement in indirectly influencing land use. Suing and appealing for repeal of the plan seems like it could be a quick(ish) and dirty way of getting what AFBF, et al. wants (relaxed restrictions on non-point source nutrient pollution). Especially if AFBF, et al. tried to give their input and to compromise but did not get the deal they wanted or are willing to settle for.

More largely, I think a disparity exist between the value different groups place on not only the markets that depend on the waterways, but the aquatic ecosystem itself. I say this because in a similar brief, counties within the Bay watershed support AFBF’s appeal. These counties are not in Maryland or Virginia, the states that are home to the Bay. Spatial distance from the adored estuary decreases the importance of its revival and the success of markets that depend on it. Additionally, temporal distance decreases this; I have the benefit of hearing wondrous stories of a Bay where you could see your toes in chest deep water, a Bay where you could practically pluck soft shell crabs from eel grass beds because the water was so clear.

Others are not so fortunate.

And the dilemma resides here: how does one inspire value for something they have not seen or touched? My generation has never seen a healthy Bay. People in the watershed and throughout the country that oppose the EPA’s plan more than likely did not grown up with the dynamic & charismatic Chesapeake at their back yard or directly depended on the estuary.

Can we expect the Bay to be “saved” by distant third parties or by the increasingly disconnected upcoming generation? Does a general appreciation and value put into the natural world provide sufficient reason for the nation to support the EPA here? Probably not.

Finding the balance of EPA regulation could be achieved through these appeals. Perhaps the EPA recognizes rigidity in its plan and provides some flexibility. Alternatively, the AFBF, et al. could be silenced by another loss and the EPA proceeds as it pleases. None the less, pursuing the route of EPA regulation via the CWA and TMDLs looks far less reckless than resting the responsibility of cleaning up the Bay on the future generations would be.