op-ed by Fred Tutman, Patuxent Riverkeper: THE OBAMA PLAN FOR THE CHESAPEAKE:
I’ve been getting calls all week that range from ecstatically hopeful to sage cynicism about the latest Executive Order issued by President Obama which sets the stage for a new course for restoring and protecting the Chesapeake Bay. While I am pretty excited about the potential of this new approach myself, I am also intrigued to see how this new beginning will manifest among the regional culture of people and interests who have been working on the Bay’s problems for many years. For example, Maryland’s Governor commented to the media that he would welcome the new Federal dollars brought to bear on the problem. This raises interesting questions about whether the biggest role the Fed can play is to bring lots of money? I don’t think so. I have never seen any evidence at all that the Chesapeake Bay would be any better off today if the Feds or anybody else had thrown more money at it. Perhaps the most compelling support for the “new money” argument would be if we could actually point to success stories and trends that investment in restoration plausibly outweighs the comparable effects of money spent on  polluting the Bay. Actually the Executive Order resolutely enumerates a fresh start on restoring the Bay, while new money of any kind is barely mentioned. Presumably there will be some who will assume that the President’s commitment is an illusory one because it does not open the Federal checkbook, but that also says volumes about a restoration community that has been trying unsuccessfully for decades to out spend the polluting establishment. It is plain (at least to me) that it takes more than money to clean up a Bay that so may have profited from destroying.
So what then does Obama propose for the Bay if not Federal subsidies? Interestingly, among the people I have spoken to so far,  few have actually taken the time to actually read the Executive Order.  If they had they would see that the President has made a compelling case for stronger accountability, putting the Federal Government in the leading oversight role and changing the status quo in terms of benchmarks and reporting while laying out specific steps to be followed by the “Feds” to craft a new “performance” based game plan with the particpation of the stakeholders. In essence the Obama administration while assuming the Senior reigns of the Bay cleanup has made it clear that it intends to hold the States and other Bay jurisdictions more accountable than ever, to deliver results–not hand out fresh subsidies on faith.  As a person who spend a fair amount of time dealing with legislators and policymakers I can assure you that more than a few people in this State feel that they don’t have to follow through on much at all unless they have been given the budget to implement something. So are we required to clean up the Bay even if it is not in the budget?  I think we are, especially in the Federal Goverment is prepared to back up its plan. Granted, an Executive Order or directive from the Executive Branch lacks the bigger “stick” of congress made law, but it does up the ante in terms of the Federal role as it influences the Bay’s health and in particular the President’s commitment to have the DOD agencies do their share to clean up federal facilities.  By comparison,  there are a variety of existing Federal laws that are binding on the States whether or not those states know how to fund their compliance. For example, we all are supposed to complying with the Clean Water Act and while the government has long given grants to States in order to fulfill broad Federally created mandates, the ability to compel compliance with Federal law by the States is an important tool on behalf of the environment. Sure, bribing to States (with subsidies) to comply is often done but it is not really compulsory on the Fed to do so. In some strange way, there seems to be a mentality afoot that if the Federal government steps in,  that it relieves the States of the requirement (or the blame) for performing or funding its full obligations to maintain clean air, water etc.  That’s a strange idea. Having read the Executive Order at least twice, I did not see anywhere in it that the Federal Government was anticipating giving new money to fund a mandate that has pre-existed since the President was in knee pants! In common sense terms, if someone had a legally enforceable mandate and then failed,  is there any obligation at all for the government to reward that failure with increased resources? Hardly.

My point is that if people read the order they probably would start thinking more about the actual consequences and implications of a government run initiative that if we don’t comply with then then Federal Courts will make us do so. Don’t get me wrong, I think the Obama Order, which is impressively lucid about new anti-pollution measures to be taken by several Cabinet agencies is a wonderful thing. I am just perplexed why some of the folks who just bee symbolically fired from the Bay cleanup are so happy about the very public, Federal acknowledgement of their failure? I think the real “news” is that the Executive Order suggests that it will now bring a supervening authority on board to ensure that the States start delivering real results when it comes to “Saving the Bay”. The Executive Order acknowledges in no uncertain terms, that States have failed to do the job and that different and expanded measures are needed plus stringent oversight if we are to expect a restoration of the Bay and its ecological significance.

Yet the irony here is that Federal interference in the affairs of the States is almost never welcome in any area you care to mention. Of course Federal money is always welcomed, but Federal interference is usually reviled by the States. So truthfully, a complete restructuring of the Bay preservation movement with a Federal kick in the pants at yearly intervals instead of every ten years, is a pain in the rump that many will quickly come to resent if the Executive Order is implemented to its full potential. Yet, in a manner consistent with the Obama administration, this latest message was delivered in a cordial and diplomatic fashion, so maybe some have missed the point so it bears repeating. The Bay program has failed–the Feds are no longer looking to the States to maintain the status quo. Results are expected. The Fed will run the show and lead the way. It’s a partnership but one where everyone has to be accountable.  While, we will now have increased federal participation in the Bay cleanup, there probabaly won’t be loads of new federal money coming on-line but frankly we should have been doing this clean-up stuff all along-or we should never had let things degrade to the extent that would cost so much to restore. It is not an unfunded mandate, it is one at we have simply deferred for years and we will have to find ways to pay the piper, maybe even by defunding other stuff.

The other intriguing question I have heard is whether or not the recent Chesapeake Bay Foundation litigation against the EPA is the guiding light behind the President’s announcement?  Draw your own conclusions but consider this food for thought:

1. The Bay Foundation law suit as filed was rather vague and indistinct as to the relief it was seeking (other than some Federal engagement). Although framed by an eloquent description of the failures, lack of attainment and various interests at stake, the law suit text made the argument that the Bay program has failed but without actually pointing  a finger at any of non federal signatories to the Bay agreement.  If the substance of the prior Bay agreements imposed a duty on the EPA to see that the Bay was cleaned up then does not the same duty apply to those other signatories? The implication may be that this CBF filing was a political strategy as much as a legal one. The rhetorical and policy based arguments contained in it seem far more compelling than the legal ones.  Further, if the new Obama initiative for the Bay is the product of the Bay Foundation’s hazy legal strategy, then there is not a single plank to that effect in the President’s message. The concordance between well known problems is clear but the proposed strategies seem delinked from the CBF legal presentation. On this basis, one might conclude that the Executive Order is unlikely to be just an implementation of the Bay Foundation’s strategies for the Bay.

2. Virtually none of the strategies proposed in the Executive Order reflect a platform of ongoing actions, priorities, activities or policy initiatives that the Bay Foundation has ever sought to advance.  Maybe there is synergy here but the Obama plan seems programatic in scope. It barely mentions the educational programs that CBF is best known for.  One interesting caveat is the Obama call for greater “access”" to the Bay for those without it. It suggests an environmental justice aspect that is potentially refreshing.  I’ve rarely seen this plank in any Bay Foundation outreach about its own prescription for healing what’s wrong with the Bay.  So if after all the Bay/EPA lawsuit was the catalyst for “something”; then the Obama  administration at least deserves a good measure of credit for taking the CBF well meaning desire to “Save the Bay” and translating it into an actual strategy that is likely to produce mesaurable progress to that aim and more. So, does it matter whose idea this is? I think it does to the extent that if one views the Obama initiative as an extension of the existing Bay preservation movement and community then it is a very limited vision. If this were the case, then one would expect that the “usual suspects” will now have  Federal support to pursue the usual  approach to the usual problems. Instead, I think it is worth noting that that the Obama order seems to set the stage to chart an entirely new course, that it is a changed direction, establishes a revised power structure and marks a fresh beggining.  This posture (to me) seems inconsistent with CBF’s undeniable role as part of the old establishment and clearly an influential force that is enmeshed in the previous and existing Bay cleanup community.
So, if change is really in the air, the public will know rapidly once the EPA has empanelled the oversight committee that will be focused on the Bay’s problems. If it reflects new blood, new ideas and new inspiration in the composition of the group, in the breadth of its vision and willingness to being about real change, it will be a refreshing change. But if it  is top heavy with the same “gang” that have been leading the cleanup movement for the past 40 years then it will signal the new dawning of the same old song instead.

I can’t wait to learn which.