A federal judge in December dismissed on procedural grounds a suit brought by two environmental groups that challenged the legality of nutrient trading programs, which are touted as a way to reduce the cost of implementing the Chesapeake Bay Total Maximum Daily Load.
U.S. District Judge Rudolph Contreras of the District of Columbia granted the EPA’s motion to dismiss a lawsuit brought by Food & Water Watch and Friends of the Earth in October 2012.
The judge ruled that the suit was premature as the groups could not show actual harm or an imminent threat from trading programs. Therefore, he said the groups lacked standing to bring the case.
The suit had sought to block the use of trading as a mechanism for entities to meet nutrient reduction limits set in the Bay TMDL.
Under trading, a regulated entity could meet nutrient reduction obligations by purchasing “credits” from someone, such as a farmer, who achieved more nutrient reductions than required of him or her.
The groups raised a number of concerns, including that such trades could create nutrient-enriched “hot spots” in waterways where nutrient controls are expensive, potentially in low-income areas, while reductions are achieved elsewhere.
Contreras said the groups offered “no support beyond their own conclusory allegations” that hot spots would be created, and noted that all water bodies still had to meet water quality standards, whether they used trading or not.
A statement issued by Food & Water Watch Executive Director Wenonah Hauter said the ruling failed to address the legality of trading programs, and instead put the burden on groups to show that harm was caused by a specific trade.
“The decision, if it stands, forces plaintiffs to challenge pollution trading on a case-by-case basis as polluters begin to take advantage of these schemes in the Bay watershed,”
Nutrient trading has been controversial for years, and while states in the watershed have been developing trading programs, relatively few trades have actually taken place.