August 24, 2010

Over the past several months, environmentalists in the Chesapeake Bay region have been closely watching the Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced by Sen. Benjamin L. Cardin of Maryland. The Cardin bill, as it is commonly known, is being offered as a way to clean up a watershed that has suffered for decades from industrial abuse and political ineptitude. It is being touted by some as the last great chance to save the bay.

Unfortunately, in its current form, this bill will end up doing more harm than good.

As written, the bill weakens the Clean Water Act, the one tool that we know can help us clean up our impaired waterways. Indeed, several of the bill’s provisions undermine the act’s very foundations. For example, for the first time since the Clean Water Act was passed in 1972, states would be allowed to exempt point source polluters from permitting requirements. The bill also creates a shield against the act’s enforcement for the agriculture industry, the biggest single pollution source in the bay watershed.

Perhaps the most disturbing aspect of the bill is a market-based trading scheme that allows polluters to generate and sell nutrient and sediment pollution credits to other polluters. This pollution trading system will, according to its supporters, bring a much-needed level of “flexibility” to pollution control and result in a cleaner bay by 2025.

But is “flexibility” really what’s driving this market approach? The Delmarva Poultry Institute’s June 2010 newsletter, Timely Topics, applauds nutrient trading as “a program [that] has been created to help farmers earn money while providing polluters with the opportunity to increase their pollution to the Chesapeake Bay and its tributaries.” Finally, some honesty about what nutrient trading is really all about — some polluters making more money while other polluters get to make more pollution. It’s a win-win … for polluters.

Many supporters of the bill claim that an inadequate Clean Water Act is to blame for repeated bay cleanup failures. However, that law is not the problem. The reason why the bay isn’t clean today is because of a decades-long lack of political will at both the state and federal level. It’s due to the failure of bay state environmental agencies to establish enforceable pollution limits on most of their nutrient-impaired waterways. It’s because political officials won’t stand up to some of the biggest polluters, and refuse to direct their agencies to fulfill their missions and enforce current law. It’s because nearly every bay state has allowed developers, counties and cities to short-circuit any meaningful controls on urban/suburban runoff. It’s because state legislators spend more time running interference for industry than protecting citizens who rely on healthy waterways. And it’s because the EPA continues to allow bay states to treat clean water like it’s an option instead of a basic, legally protected right.

The Clean Water Act, as currently written, contains all the tools necessary to clean up the bay — without bringing the market into it. There are protective point source permitting programs, incentives for non-point-source controls, requirements to attain water quality standards that allow state government to force polluters to reduce pollution. And when states fail to protect water resources, as the bay states have, it allows the EPA to step in and strip away the state’s delegated authority and administer the act itself. The CWA has been used by Waterkeepers and governments to clean up waterways across the country through state and federal resolve, industry compliance, citizen oversight and diligent enforcement.

To get a clean and healthy bay, we don’t need a new bill — we need to enforce the current law. Keep trying to reinvent the wheel to hide the real reasons for the dismal failure in the Chesapeake, and in 2025 we will still be sitting in a boat in the middle of a heavily polluted bay. Strip the Clean Water Act of its power, and we’ll be there — without a paddle.

Eliza Steinmeier is the Baltimore Harbor Waterkeeper. Her e-mail is eliza@harborwaterkeeper.org. Michael Helfrich is the Lower Susquehanna Riverkeeper. His e-mail is lowsusriver@hotmail.com.

One advantage of the so called “compromise” or weakening of the stormwater regulations that that has been unsaid in most of the trite explanations being sent around to irate environmentalists by “apologists” is that it also allows legislators to appease the maximum number of constituents without appearing polarized. The legislators covet both the support of builders and also environmental voters in an election year. The political theater merges the varied needs of many interest groups. Everybody has a different agenda and nobody gets anything done unless they both give and get a little. It is a perverse and cynical system that rewards people of both good faith and bad by giving them all an incentive to cooperate in some instances with passing bad laws just so we can at times pass some good ones too. As voters and citizens, we need to do better than this antiquated system. Legislators who care nothing about one set of laws will stonewall or withhold their support for the sole reason that they can use good law as a bargaining chip in order to get bad ones passed. And vice versa. They will exchange their support or withhold it in order to get something else passed that was what they or their supporters really cared about. I consider this morally bankrupt because it is a form of horse trading in which the public interest is an afterthought or perhaps only one if not the last factor considered in many of these transactions. With 2400+ laws to review in a session, some legislators eventually find themselves in a haze where all laws look alike to them. The real question they ask themselves is can I trade my support or withhold it in such a way for me to advance my agenda, stay elected or please my constituents? It is the way things are done, and a politician who does not play by such rules risk being ineffective or not staying in office. All of them do this to some extent and all have very different thresholds for what they are willing to compromise and how far they will either reach or stoop on any given day or any given piece of legislation in order to stay in the game. They all must give a little in order to get a little.

The problem with Stormwater was that the builders successfully confused the issue by distorting what was sacrificed. Worse, it remains unclear what if anything the environment obtained in the transaction.There is still confusion from many on these points and this was deliberate by those primarily seeking to rollback the stormwater laws. In sum, the emergency regulations provided an extension of time for builders to use outmoded and weaker environmental laws for an unspecified number of projects and also an opportunity to give local jurisdictions more time and loopholes to craft waivers for projects that they insisted (but never really documented) deserved an extension of time or a waiver. It was second bite at the apple for business interests who had failed previously to win these things during the 2+ year MDE promulgation process and who had already had considerable time to stack and front load a huge number of projects into various pipelines prior to the May 4th deadline they had known about for a long while. Frankly, it was and resulted in an extension for those who were already on extension. It was also obvious from the start that the Stormwater Act was the “lady or the tiger” in this session. The opponents and proponents represented two extremes; those who want the Bay cleaned up and those whose “jobs” plainly rely to some extent on wrecking the existing laws that represent business as usual.

Elected officials risked alienating either of the two extremes. The original Holmes Bill was so extreme it was not likely to pass in its original form. Its sponsor had to have known this and so he stacked it with so much stuff that he was prepared to accept compromise in order to get at least some of what he really wanted all along. Then (according to them) like a knight on a white horse, a group of “leading environmentalists” joined forces willingly with other legislators who similarly either brokered or originated a weakening that appeased the builders (we’ll never know which and it probably does not matter which based on the end result). These retail compromisers (retail by implication because each had a figurative self interested price tag for their own participation) packaged the ultimate weakening that allowed the politicians to appear to be both supporting the builders and the environmentalists at the same time. A magic pill to dispense with a massive election year headache. I believe this was the true reason so many legislators were so eager to embrace emergency regulations. It was an elegant deal. It even came with a blue chip assurance from an environmental score card group that assured them that a vote for the compromise would not count against their environmental scorecard. Who wouldn’t take such a deal? It was a sweetie.

The artful explanation now being sent around by legislators who voted for the emergency regs generally champion not the merits of the emergency regulations but instead applauds the spirit and principles of “compromise” as a virtue. It validates a system that sometime gives up a lot in order to appear to be fair and equitable for the environment when really on this occasion it was dealing with a business conspiracy that hired expensive and morally bankrupt lobbyists to help vanquish some deadlines, and weaken some environmental protections that were inconvenient and that the builders had failed to torpedo even after about two years of public promulgation procedures and public review. It clouded both our minds and the waters of our Bay with much that was not said about the true effects of the compromise. And it found a wall of support in Annapolis because the common interests of all concerned favored getting re-elected (or looking heroic, or protecting their base of power etc) more than holding the line for protection of the environment. The questions now should not be posed to those legislators who supported the compromise. The real questions should be asked of those legislators who did not! These answers would undoubtedly be far more instructive than the present form letters being sent out to rationalize why a deal was needed at all. There was not much wrong with leaving the stormwater act alone really. It was just that without some form of rollback, the political marketplace had little to sell or transact. Without a fake threat and an even more fake appearance of needed compromise, the only interest group that was in a position to win, was the ecology of the Bay. Most understood this, including those of us fighting to protect the 2007 Act. Most elected officials had to have grasped that this bizarre transaction was a safe gambit or maybe even inevitable one but it conveniently came with the blue chip, full faith and credit of the “leading” environmental groups. Once the stormwater deal faced opposition from a second environmental lobby, those who made the deal were fighting not just for the environment but also to protect their authority to credibly make such deals on behalf of the environment in the future. In truth they often seemed to be fighting less for the Bay and more to defend their wheeling and dealing ways and to discredit those who had the effect of challenging their authority to “lead” on behalf of the environmental movement. In the aftermath, there is a bonafide question that should be answered about exactly who the environmental leaders involved with the negotiations were leading other than themselves?

Several legislators who are usually good on the environment voted for the emergency regs. This has further confused some voters. But remember, that the building was on fire and some of these people climbed out of the best window or loophole available to them under the circumstances in order to protect themselves from getting burned politically. Others did not. Some believed that since compromise was probably inevitable as a way of life and politics that this one was the very best we and the environment could get–even while it was also the best deal that developer’s money could buy. For the purposes of an environmental or legislative endorsement, I think it is more gray than black and white. One would have to look more closely at a particular legislator’s motives and circumstances to get the full story.

We hope this helps.

A stick coated with mud and oil from Swanson Creek

Casi (kc) Callaway
Executive Director & Baykeeper
Mobile Baykeeper
300 Dauphin Street, Suite 200
Mobile, AL 36602

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