The Chesapeake Bay pollution diet is ambitious and, if enforced, should go a long way toward cleaning up the estuary. Meeting the targets, however, will require robust oversight and enforcement. The states must set appropriate penalties to deter noncompliance, ensure that pollution trading, if done at all, is done correctly, and provide the necessary resources to fully enforce the law.
Wrong Way: EPA’s Retreat from Enforcement
In November 2013, EPA released a draft of a new strategic plan in which it advertised that it would significantly reduce the number of inspections and enforcement actions it conducted, while asserting that it would embrace a “Next Generation Compliance” program that relies on industry self-monitoring. CPR's Rena Steinzor, Rob Glicksman and Anne Havemann published an Issue Alert in January 2014 deconstructing what EPA's enforcement retreat means for the Chesapeake, and sent a letter to EPA Administrator Gina McCarthy calling on her to rethink the plan.
Deterring Noncompliance: Impose Sufficient Civil and Criminal Penalties
To deter others from violating the law, the government must impose sufficient civil penalties that violators do not profit from their decision to ignore the law and must utilize criminal penalties when appropriate.
In April 2013, Member Scholar Robert Glicksman and Policy Analyst Aimee Simpson issued No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies, which explored whether the states’ penalty structures allowed polluters to profit from violating the law, even if caught and penalized. Their conclusion: The Bay states need to amend their existing laws and policies to make sure that polluters get no economic benefit from noncompliance with the law. The briefing paper also calls for greater transparency concerning existing penalty assessments. Read the day-of-release blog post by the authors.
Some states within the Bay watershed are considering water quality trading as a way to meet the TMDL requirements. In December 2013, a federal judge decided that states could implement the TMDL with water quality trading as one component of their pollution-control requirements.
Broad participation in the program, including from "nonpoint" pollution sources;
Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings;
Resources from the states sufficient to operate an accountable trading regime in all its complexity;
Rules that avoid pollution hot spots;
A continuation of traditional regulatory controls that would create an incentive for participation in the program;
Transparency from EPA and the Bay states, so that compliance can be monitored by all.
In August 2012, CPR's Rena Steinzor, Robert R.M. Verchick, Nick Vidargas and Yee Huang explored the environmental justice implications of a water quality trading regime in the Chesapeake, concluding that in the absence of specific safeguards, the approach could result in pollution "hot spots" that took a disproportionate toll on the region's poor and minority residents. Read the news release.
The success of cleanup efforts in the Bay will depend in great measure on the outcome of a number of legal challenges. CPR scholars and staff have prepared case briefs on a number of the most significant cases.