After years of little or no progress in upgrading the water quality of the Chesapeake Bay, and after years of promises and setting goals from federal officials, the Chesapeake Bay Foundation, along with some politicians with ties to Chesapeake Bay, filed a lawsuit on January 5, 2009, against the EPA under the citizen’s suit provision of the Clean Water Act. 33 U.S.C. 1365.
There can be no doubt that the Chesapeake Bay is dire need of a clean up and that the series of Chesapeake Bay Agreements, which originally promised success by 2000, then by 2010, are failures. Perhaps the Washington Post’s December 27, 2008, article best summed up the situation:
The goal of rescuing North America’s largest estuary was formally entrusted in 1983 to a group of federal, state and local authorities under the loose guidance of the U.S. Environmental Protection Agency. The task: controlling runoff from 4.8 million acres of farmland, installing upgrades at more than 400 sewage plants and managing the catch of more than 11,000 licensed watermen.
But the agencies charged with the cleanup have never mustered enough legal muscle or political will to overcome opposition from the agricultural and fishing industries and other interests.
However, a deplorable situation does not a lawsuit make. After many pages describing the the failures of the “agencies charged with cleanup,” the CBF seeks to point the finger at the EPA for failing to follow through on the promises and goals set out in the Chesapeake Bay Agreements.
[EPA] Administrator, in coordination with other members of the Chesapeake Executive Council, shall assure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement . . .
The critical words for purposes of the lawsuit are “assure that management plans are developed and implementation is begun.” Nothing in the provision of the Clean Water Act says that the EPA Administrator has to be successful in achieving the goals laid out in the Chesapeake Agreements. The EPA only has to develop a plan and begin to implement it. Congress did not state any requirement that the goals must actually be met. Nor is there any “. . . Or Else” provision in 117(g)(1), as in, the EPA had better meet these goals, or else something bad will happen.
Congress knows how to put a hammer in legislation for an agency to use. In the Clean Air Act, for example, dire circumstances will befall those states and local government who do not come up with a State Implementation Plan and enforce it to bring the air into compliance with the Clean Air Act. But it did not do so here. Thus, there is little recourse for private citizens, such as the CBF to “enforce” the provisions of 117(g), since there is nothing in the statute requiring the EPA achieve the goals set by a certain date.
Has the EPA done everything in its power to achieve the goals set in the Chesapeake Agreements? Not in the least. The CBF request that the EPA exert its regulatory muscle by regulating harmful pollution from agriculture, storm sewers and power plants is well within the power of the EPA. The problem is that there is no apparent legal obligation under the Clean Water Act for the EPA to take those actions.
If the intent of the lawsuit is, as William C. Baker, CBF’s President, claims, to “put the issue of Chesapeake Bay and clean water squarely on the desk of the new EPA administrator,” then the lawsuit may be deemed to be success. However, from a legal standpoint, the Complaint does not hold together. What is needed is better legislation that either (1) gives regulatory agencies specific deadlines and goals; and (2) gives citizens the right to ensure that those goals are met.