Two environmental groups have challenged the legality of fledging trading programs that are being promoted as a cost-effective way to help achieve the nutrient reduction goals established in the Chesapeake Bay "pollution diet."
Food & Water Watch and Friends of the Earth say trading programs are more likely to hurt than help pollution reduction efforts. They want to block the EPA from implementing provisions of the Chesapeake Bay Total Maximum Daily Load that would allow entities to meet their nutrient reduction requirements through trading programs being developed by the states.
Unlike a challenge brought by farm groups against the EPA over the TMDL, the groups said they sought only to invalidate the trading portion of the cleanup plan. The TMDL establishes the maximum amount of nutrients which may reach the Bay from each state and river.
"Our goal is not to vacate the TMDL. Our goal is to get rid of trading," said Scott Edwards, a lawyer with Food & Water Watch, on an Oct. 3 conference call announcing the legal action. "We think the TMDL, as written, without trading, gives us the best promise for a clean and healthy Chesapeake Bay."
Trading advocates say the marketplace can help reduce pollution control expenses by allowing entities that face high pollution control costs, such as wastewater treatment plants or urban stormwater systems, to purchase "credits" for reductions achieved by others, such as farmers, who can achieve nutrient reductions at less cost.
Critics say such programs are filled with uncertainty. Unlike dischargers, where pollution is measured, they say it's hard to be certain how much pollution is being removed by practices such as cover crops or stream buffers. They prefer using traditional regulatory programs that ratchet down pollution with the intent of eventually eliminating it.
"The water pollution trading that is being promoted in the Chesapeake Bay, is based on buying and selling unverifiable pollution credits," said Wenonah Hauter, president of Food & Water Watch. "It turns what is now illegal under the Clean Water Act, into the right to pollute"
Further, critics say, allowing places to pay someone else for reductions may delay, or prevent altogether, improvements for urban areas with poor or minority populations.
"We believe that pollution trading is not only illegal, but it is immoral," said Patuxent RiverKeeper Fred Tutman, who also participated on the conference call. "It creates outcomes that defer clean water and healthy communities and allocates resources elsewhere."
The organizations said they were acting in part out of concern that any trading programs started here could be adopted in other parts of the country. "The Bay water pollution trading program sets a bad national precedent," said Erich Pica, president of Friends of the Earth. "Watersheds across the country are looking at the Chesapeake Bay's implementation of this pollution trading system, and we believe that it will be a failure."
The suit highlights a rift that has emerged among environmental groups over trading. Some, such as the Chesapeake Bay Foundation, have expressed support for carefully constructed programs, while others have expressed doubt trading programs would actually reduce pollution or be enforceable.
"Certainly those groups have a right to take their position on trading," Edwards said. "We are convinced that it is the wrong way to go, and will result in worsening water quality, and it is illegal."
EPA officials declined to comment on the suit. A spokesman for the Chesapeake Bay Foundation said it was reviewing the suit.
Relatively few water pollution trades have taken place either in the Bay, or around the nation, and the question of whether trading is actually sanctioned under the Clean Water Act has never been clearly resolved by a court. Unlike the Clean Air Act, which specifically allowed trading when it was last updated in 1990, the issue was never addressed in the Clean Water Act, which was last updated in 1988.
A 2008 white paper by the National Sea Grant Law Center for the Bay Program's Scientific and Technical Advisory Committee said courts have given conflicting verdicts over the question of whether a new or expanding discharger can offset its pollution through reductions from another source — a key element of any trading program.
Nonetheless, EPA has promoted trading in the Bay watershed and elsewhere, and developed guidance for trading programs.
"Although EPA has been encouraging states to embrace water quality trading, courts are just starting to consider the legality of such programs," the paper said.