Groups to sue U.S. over bay

EPA accused of ignoring obligation to Chesapeake

By Timothy B. Wheeler

January 5, 2009

The Chesapeake Bay Foundation and several fishing groups will file suit today accusing the federal government of shirking its legal responsibilities to clean up the troubled estuary, officials of the Annapolis-based environmental group said yesterday.

The lawsuit, to be filed in U.S. District Court in Washington, contends that the Environmental Protection Agency has failed to comply with the Clean Water Act and with multiple interstate agreements the agency has signed over the past 25 years aimed at restoring the bay.

The suit contends that the federal government's inaction has led to the continued decline of the bay's water quality and harmed its crabs, oysters and fish - and the people who make a living from the bay or seek to enjoy its diminished bounty.

The bay's water quality has worsened during the past two decades, University of Maryland research shows.

Chesapeake Bay Foundation President William C. Baker said yesterday that the group decided to sue after the EPA and bay state leaders acknowledged last summer that they did not expect to achieve by 2010 cleanup goals they had set eight years earlier - and were considering pushing back their self-imposed deadline to 2020 or even later.

"People are outraged that technologies that can clean up the Chesapeake Bay and are required by law are not being implemented, and that the law is not being enforced," Baker said. "We want to see the science followed and the rule of law enforced. That's the least we can ask of our government."

Joining in the lawsuit are watermen's and recreational fishing groups from Maryland and Virginia and several current and former elected officials, including former Maryland Gov. Harry R. Hughes and former state Sen. Bernie Fowler of Southern Maryland. The plaintiffs ask the court to impose a legally enforceable timetable for reducing pollution and to require the federal government to provide the funding needed to carry it out.

The foundation had formally warned the federal government two months ago of its intent to sue. Last week, the foundation released a report quoting bay scientists saying that pollution was to blame along with overfishing for the serious decline in the bay's blue crab population.

The federal government declared the bay's crabbing industry a disaster last year and has authorized $20 million in economic assistance to idled watermen and hurt seafood businesses.

EPA officials have said they share others' frustration with the lack of progress restoring the bay, but they stressed that they favor cooperative efforts to reduce pollution over "legal confrontation."

"EPA wants a cleaner and healthier bay and is committed to holding polluters accountable and to working with our partners to speed up the cleanup," Benjamin H. Grumbles, the EPA's assistant administrator for water, said in a written statement yesterday. Grumbles said he hoped the lawsuit doesn't "divert energy" away from the cleanup to the courtroom.

An environmental law expert called the bay foundation's action "a bold move" but warned that it could face an uphill battle in the courts.

"EPA may have been slow and incompetent, but it's hard to see where it has violated any nondiscretionary duty," said Patrick Parenteau, a Vermont Law School professor who reviewed the foundation's formal warning to EPA.

Baker said the foundation's lawyers think they have a good case but that he also hopes it will prompt the incoming Obama administration to change what he called a "laissez faire" opposition to regulation by the Bush administration.

"What this case will do is put the situation regarding the Chesapeake Bay squarely on the new administration's desk," he said.