WASHINGTON, D.C. – Attorney General Karl A. Racine today announced that the District of Columbia, Delaware, Maryland, and Virginia filed a lawsuit against the Environmental Protection Agency (EPA) for failing to protect the Chesapeake Bay and local waters, including the Potomac River. The states allege that the EPA has failed to uphold the terms of a multistate agreement to reduce pollution levels in the Chesapeake Bay. The EPA has a legal duty under the Clean Water Act to make sure the Bay watershed states and the District develop and implement plans to meet established pollution reduction goals, but the agency has failed to require New York and Pennsylvania to do so. In May, D.C., Delaware, Maryland, and Virginia notified the EPA that if it did not fulfill its duty within 60 days, the states would file suit. The EPA failed to respond, and the states have filed suit to compel the agency to resume its critical role to ensure pollution is reduced and the Bay is restored.
“We cannot allow the EPA to abdicate its legal duty to ensure states are reducing pollution in the Chesapeake Bay,” said AG Racine. “We filed this lawsuit to force the EPA to do its job, protect decades of environmental work and billions of dollars invested, and ensure all the watershed states work together meet pollution reduction goals. Safeguarding the health of the Bay—and all of our interconnected rivers and streams—is impossible without everyone doing their part.”
Protecting the Chesapeake Bay
The Chesapeake Bay is the largest estuary in the United States. Its watershed spans 64,000 square miles and includes rivers and streams in the District, Delaware, Maryland, New York, Pennsylvania, and West Virginia. Efforts to protect the Bay are uniquely challenging because water from all these states flows into it, bringing significant amounts of pollution with it. The watershed states and the federal government have worked together for decades to improve the quality of their own local waters, including the Potomac River in the District, and to restore the health of the Bay.
In 1983, D.C., Maryland, Pennsylvania, Virginia, the Chesapeake Bay Commission, and the EPA signed the Chesapeake Bay Agreement, the first multistate effort to clean up the Bay. This agreement led to further collaboration and to Clean Water Act amendments designed specifically to restore and protect the Bay. In 2010, the EPA and the watershed states agreed to and began implementing an overall plan which aimed to restore the Bay by 2025 by setting pollution levels for the entire watershed.
To ensure each state would reduce pollution to agreed-upon levels, the EPA required them to develop and implement individual plans. Many of the Bay states developed strong plans and dedicated significant resources to improving the health of their local waters and the Chesapeake Bay. For example, the District spent millions of dollars reducing pollution loads, monitoring water quality, and improving water infrastructure. Between 2017 and 2019 alone, the District spent approximately $113 million to fulfill its commitments under the Bay Agreement.
EPA’s Failure to Uphold the Multistate Agreement
Each state submitted the final phase of its pollution reduction plans to the EPA in August 2019. While most states were on track, the agency’s analysis of the final plans determined that Pennsylvania’s plan would only meet 75 percent of its reduction target and New York’s plan would only meet 64 percent. The EPA has not required Pennsylvania and New York to prepare new plans, nor has it threatened to take any other action. As a result, excessive pollution will to continue flowing from these states into the Bay, and the pollution reduction goals of the Chesapeake Bay Agreement will not be met.
“The Chesapeake Bay is a national treasure,” said Maryland Attorney General Brian Frosh. “Restoring the health of the Bay will take a coordinated, comprehensive effort by each of the watershed states. EPA has walked away from its responsibility to regulate and manage the efforts of the Bay states. Today, we are asking the court to force EPA to do its job.”
As the Attorneys General assert in their complaint, “by failing to require Pennsylvania and New York to develop and implement [plans] that meet the goals of the Bay Agreement, EPA has breached its nondiscretionary duty to ensure that management plans submitted by the Bay State signatories will achieve and maintain the nutrient goals of the Chesapeake Bay Agreement.” The Attorneys General also allege that the EPA’s abrupt abandonment of decade-old guidance and regulatory action without explanation was arbitrary and capricious in violation of the Administrative Procedures Act.
“The Chesapeake Bay is one of Virginia’s most important natural treasures and we all have a role to play in protecting and restoring it,” said Virginia Attorney General Mark Herring. “The EPA must hold every partner equally accountable and make sure they uphold their portion of the Agreement, but Trump’s EPA shirked that responsibility and simply rubberstamped inadequate plans. I will not stand by and allow the EPA to ignore its enforcement obligations and erase decades of progress we have made to reduce pollution and restore the Chesapeake Bay.”
A copy of the lawsuit is available at: https://oag.dc.gov/sites/default/files/2020-09/EPA-Chesapeake-Bay-Complaint.pdf
The states are seeking a court order declaring that the EPA is in violation of the law, vacating EPA’s actions on New York’s and Pennsylvania’s pollution reduction plans, and requiring the EPA to ensure that Pennsylvania and New York develop and implement plans that achieve and maintain the nutrient goals of the Chesapeake Bay Agreement. They are also seeking to recover costs associated with this litigation. The Chesapeake Bay Foundation has also filed a similar lawsuit.
OAG’s Environmental Work
Over the last two years, OAG has deployed additional resources (supported by the D.C. Council) to protect the environment and address persistent local environmental problems, including those that disproportionately impact low-income communities. OAG filed suit against Ward 5 businesses that repeatedly spilled toxic oil into streets and District waterways and forced a landlord to clean up toxic lead paint that put children at risk. OAG is deeply involved in the District’s ongoing cleanup of the Anacostia River, recovering $2.5 million from a power plant that discharged oil into the river. The office also recovered $52 million from Monsanto, which produced, promoted, and sold toxic PCBs that damaged the District’s waters and other natural resources. Greyhound, in a settlement with OAG resolving a lawsuit over air pollution violations at Union Station, adopted bus anti-idling policies nationwide. Additionally, OAG has joined multistate lawsuits to stop the Trump administration from rolling back critical environmental protections, such as auto emissions standards and Clean Water Act rules.