Bay lawsuit - more political than legal ploy?
Environmentalists protest slow bay cleanup in Washington - photo by Doug Kapustin
The Chesapeake Bay Foundation sued the Environmental Protection Agency yesterday, accusing it of shirking its legal obligations to clean up the bay. But what are the chances that the suit, which could take years to litigate, will do what 25 years of "partnering" among the states and federal government have not? Some think it's an iffy legal case, but a smart political move - and more likely to produce results outside the courtroom than in.
As I reported in The Baltimore Sun yesterday, some legal experts think the Annapolis-based environmental group has an uphill fight to win its lawsuit against the EPA. The legal issue boils down to whether EPA violated the Clean Water Act and other federal laws in not doing or requiring more for the bay. Courts tradtiionally are reluctant to second-guess executive-branch agencies in how they carry out the law, even if those actions fail to produce the desired results.
"It's a question of the ability of litigating to require the agency to do something which seems to be farily discretionary," said Carl Tobias, a University of Richmond law professor who reviewed CBF's lawsuit. "I think that will be central to the resolution of this case, if it gets that far."
CBF President Will Baker says his lawyers think they have a decent case, and point to a federal court ruling a year ago on the West Coast, in which the EPA was barred from issuing a new discharge permit for an already degraded creek in Arizona. The Bay Journal detailed that case and its possible connections to the bay here. Baker says the foundation and its fellow plaintiffs, fishing groups and former and present local and state officials, don't necessarily want to bring all development to a halt, but that's the hammer such a case implies if the cleanup doesn't progress.
But Tobias doesn't think the case will go to trial. He said he believes the incoming Obama administration will want to settle the lawsuit and so would commit to the kind of enforceable cleanup measures and timetable the bay foundation is seeking. The bay states' leaders and EPA already have pledged to work together to find ways of accelerating their cleanup efforts, but a court-sanctioned pact might provide the political backbone that has seemed lacking so far.
"This to me is use of litigation to move everything forward, if possible," Tobias said, by "teeing it up for the new administration."
CBF's move is drawing praise from one of its biggest critics. Howard Ernst, a political science associate professor at the Naval Academy and author of Chesapeake Bay Blues, says he finds it "extremely encouraging" that the environmental group is willing to go to court over the bay cleanup. In the past, Ernst has blistered CBF for being too cozy with politicians and interest groups like farmers, preferring to work with them rather than take them on.
"Some might say it's a little late in coming,'' Ernst said of the lawsuit, "But it's better late than never."
Ernst said the suit "sends a message to the new administration that the environmental community is unified and serous about environmental protection in this region, and that the old style of environmental enforcement isn't going to be acceptable." Ernst said there's reason to think some shift in policy and law may happen. The Obama administration is greener leaning than its predecessor, and new bay legislation was introduced in the last Congress.
"It would be foolish to think this lawsuit is going to solve the bay's problems," he said. "But it's a very important step in getting people to think about the problems and the right solutions."
It may be some time yet before anyone finds out if the Obama administration will be more aggressive about cleaning up the bay than any of its Republican or Democratic predecessors. A call to the Obama transition headquarters seeking comment on the CBF lawsuit from EPA appointee Lisa Jackson drew no response.
I report on the environment and Chesapeake Bay. A native of West Virginia, I have focused mainly on Maryland's environment since moving here in 1983. Along the way, I've crewed aboard a skipjack in the bay, canoed under city streets up the Jones Fall from the Inner Harbor, and gone deep underground in a western Maryland coal mine. Recently, I have been covering the growth and development transforming the landscape. I love seafood, rambles in the country and good stories. I hope to share some here.