There was a symposium in Baltimore earlier this week on the future of the Chesapeake Bay restoration effort. It was titled “Halftime for the Chesapeake Bay TMDL,” a sports-related allusion to the upcoming “midpoint assessment” of the pollution diet imposed six years ago on Bay watershed states.
But many of those in the audience Wednesday came wondering if there would be a second half, given the surprising results of Tuesday’s election. A few in the audience at the University of Maryland law school wore all black, as if in mourning. And it didn’t take long for one of the panelists to bring up “the elephant in the room,” meaning the Republican sweep of the White House and Congress.
What’s in store for the Bay cleanup under President-elect Donald Trump? Will the federal government pull back from the central role it’s assumed in the restoration effort under President Barack Obama? Will it resume the cheerleader’s role it once had, or walk away entirely?
No one can say at this point. The Trump-Pence campaign website has no policy statement on it, and a Google search turns up no evidence that he spoke about the Bay at all during the 18-month campaign.
Trump did say at one point that if elected, he would eliminate the U.S. Environmental Protection Agency. That would effectively kill federal oversight of the Baywide “total maximum daily load,” or TMDL, under which the six watershed states and the District of Columbia must take steps by 2025 to meet nutrient and sediment pollution reduction goals.
Candidate Trump later backed off that vow, though his campaign website says he’d “decrease the size of our already bloated government after a thorough agency review.” And he’s vowed to roll back “radical” rules of all types. He’s promised to scrap the Obama administration’s Clean Power Plan, which called for reducing climate-altering emissions from coal-burning power plants. He’s also targeted another controversial EPA regulation seeking to clarify — or expand, depending on one’s perspective — federal oversight of land use that could harm the headwaters of streams and rivers.
But even though Trump and his campaign have made no direct statements on the Bay, there are still clues to the stance his administration might take — in the transition team he’s put together.
Myron Ebell, director of the Center for Energy and Environment at the conservative Competitive Enterprise Institute, is widely reported to be leading the Trump transition for EPA. Ebell has been an outspoken climate change skeptic and has devoted most of his writing and speaking lately to criticism of the Obama administration’s Clean Power Plan.
But earlier this year, Ebell did pen a blog post urging the Supreme Court to hear the American Farm Bureau Federation’s challenge of the Chesapeake Bay TMDL. He called it “the latest outrageous power grab by the Environmental Protection Agency,” contending it imposes “strict new land-use controls affecting housing and many industries, as well as agriculture.” If allowed to stand, he warned, it could lead to similar regulatory actions in watersheds throughout the country.
The high court, reduced to eight members by Justice Antonin Scalia’s death, declined to hear the TMDL case, letting stand lower court decisions upholding the EPA’s authority to develop and enforce the Bay pollution diet. Some court observers thought if Scalia had still been alive, there might have been enough justices interested in reining in the EPA to hear the case.
For now, at least, the Supreme Court’s decision not to get involved stands. But that could change if the vacancy is filled.
Even without court action, the Bay TMDL could lose what teeth it has, according to some panelists at the Ward Kershaw symposium put on by UM law school and the Center for Progressive Reform. (Full disclosure: I was one of the panelists.)
Rep. Bob Goodlatte, a Virginia Republican, has pushed legislation that would effectively bar the EPA from enforcing the TMDL. At least one rider to that effect on spending legislation has passed the House but not the Senate. The Obama administration has steadfastly opposed it, but should it come up again, the Trump administration might take a different stance. Goodlatte is reportedly a member of Trump’s transition team for agriculture.
Of course, it wouldn’t require an act of Congress for the EPA’s new leadership to simply swear off using its “backstop” authority to enforce the TMDL if one or more states fails or refuses to make needed pollution reductions. While the Chesapeake Bay Program portrays itself as a federal-state partnership, the EPA is effectively the senior partner when it comes to water quality issues. Former EPA Administrator Lisa Jackson once equated the agency’s role with that of a baseball umpire, calling balls and strikes on the adequacy of states’ cleanup efforts.
Under the law, if states fail to meet requirements to control polluted runoff from farms and urban areas, for example, the EPA could require costly treatment upgrades of municipal wastewater plants and industrial facilities. It could even limit or bar issuance of discharge permits for new or expanded businesses.
Those federal sanctions have never been invoked, but the EPA has issued Pennsylvania repeated warnings, and last year withheld nearly $3 million in federal funds as a signal of its displeasure over the state’s lagging pollution reductions. While many state and local officials have said they recognize the need to clean up the Bay, more than a few often cite the desire to avoid having the EPA crack down.
The EPA has only played that umpire role since 2010, when the TMDL went into effect. Before that, it was just one of the equal “partners” in a series of agreements signed with the Bay watershed states to work together collaboratively to reduce nutrient and sediment pollution and achieve other watershed goals, such as improving habitats and fisheries. But all of those voluntary agreements — signed in 1983, 1987 and 2000 — failed to produce promised pollution reductions by their deadlines. Those failures led to the states agreeing to have the EPA develop an enforceable pollution diet, or TMDL.
Some of the panelists at the UM symposium pointed to recent evidence of improving water quality in much of the Bay, and suggested that should serve as proof that the TMDL is working and shouldn’t be eliminated or weakened. Even if the feds pull back or out, they said they believed — or at least hoped — that the momentum created so far would inspire states to keep going.
“There’s a lot that’s still in place for us,” said Kim Coble, vice president of the Chesapeake Bay Foundation. “What has changed are the tactics we’ll need to employ.”
Eric Schaeffer, a former EPA enforcement chief who now directs the nonprofit Environmental Integrity Project, urged Bay advocates to broaden their message, to draw attention to how many streams and rivers are unsafe to swim in because of bacterial contamination from sewage overflows and polluted runoff.
Others recommended taking action to try to sell the incoming Trump administration on the bipartisan support in the Bay watershed for the restoration effort.
Jeff Corbin, a former Bay restoration adviser to the EPA administrator, urged advocates not to wait and hope the Trump administration won’t mess with the Bay TMDL. Corbin suggested laying down a marker — send the transition team a message signed by elected officials, including prominent Republicans, he said, proclaiming that the TMDL is working and it should be allowed to run its course.
Even so, Coble said, Bay advocates need to do some “soul searching” in the wake of the election to ensure the cleanup has the broadest possible support. With the ascendance of a Republican administration pledged to ease regulations and boost the economy, she and others said, it might resonate to point out how a sick Bay affects businesses and property values.
“I believe clean water is enough,” she said, “but there’s many who don’t. We need to spend time finding those levers and using them.”