AG Mark Herring Sues EPA Over Failure to Protect Chesapeake Bay

In May, Attorney General Herring, along with Attorney General Frosh and Attorney General Racine, announced that they planned to sue the EPA over its “failure to comply with its nondiscretionary duty to ensure that the signatories to the Bay Agreement develop and implement management plans that will achieve and maintain the nutrient reduction goals in the Bay Agreement.” The EPA did not “[fulfill] its nondiscretionary duty” within the 60 day deadline, which is why the partner states are suing.

“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 Attorney General 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.”

In the complaint, Virginia, Delaware, Maryland, and the District of Columbia explain that it is the EPA’s responsibility to ensure that the partner states are adhering to the agreed upon terms in the Chesapeake Bay Agreement, but that “EPA has failed to ensure that Pennsylvania and New York develop and implement [plans] that achieve and maintain their [pollutant] reductions.” They go on to explain that this failure to meet the pollution reduction levels “comes at a particularly crucial point. With the conclusion of the [plan] process, there is no further statutory or regulatory mechanism to ensure that the Bay States will achieve and maintain those reductions.”

The States also note that the EPA’s failure to enforce the terms of the agreement “represent an about-face from its prior guidance and action taken to improve deficient [plans].” Adding that the “EPA provided no advance notice of its abrupt abandonment of the decade-old guidance, which the agency had consistently invoked during the first two phases of the…process.”

“Meeting our Chesapeake Bay restoration goals will require a strong and engaged partnership—not just with member states, but with the Trump administration and the Environmental Protection Agency,” said Virginia Governor Ralph Northam, Chair of the Chesapeake Executive Council. “I am grateful to Attorney General Mark Herring for his leadership on this issue. Restoring the Chesapeake Bay will require the level of commitment we had from The Obama-Biden EPA, but have not seen from Trump. I am confident that with strong EPA backing, the watershed states can clean up the Bay.”

“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.”

“We cannot allow the EPA to abdicate its legal duty to ensure states are reducing pollution in the Chesapeake Bay,” said District of Columbia Attorney General Karl A. 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 to 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.”

“This is the moment in time for the Chesapeake Bay. If EPA fails to hold Pennsylvania accountable, the Chesapeake Clean Water Blueprint will be yet another in a series of failures for Bay restoration,” said Chesapeake Bay Foundation President William C. Baker. “It doesn’t have to be this way. Under the Blueprint we have seen progress. But unless pressure is brought to bear on Pennsylvania, we will never get to the finish line.”

The Chesapeake Bay is the largest estuary in the United States, is home to thousands of plant and animal species, and is an invaluable cultural and economic resource for Virginia, Maryland and the surrounding region. Protecting the Bay’s watershed, which spans 64,000 square miles and crosses Virginia, Maryland, Delaware, Pennsylvania, New York, West Virginia and the District of Columbia, presents unique challenges because water from each of those states flows into the Bay, bringing significant amounts of pollution with it. Over the decades, the Bay’s water quality and productivity have diminished, primarily because of pollution. Because of these problems that pollution posed, the watershed states and the federal government have long worked together to both restore the health of the Bay and protect it from further damage.

In 1983, Virginia, Maryland, Pennsylvania, the District of Columbia, the Chesapeake Bay Commission, and the EPA signed the Chesapeake Bay Agreement, the first multistate coordinated effort to restore the water quality in the Bay. This agreement led to further agreements to reduce pollution levels in the Bay, as well as the Chesapeake Bay Restoration Act, which reauthorized a section of the Clean Water Act in order to restore and protect the Bay’s ecosystem and living resources.

In 2014, the EPA, the watershed states, and the Chesapeake Executive Council signed the Chesapeake Bay Watershed Agreement, which encompassed agreed upon pollution levels for the entire watershed that would restore the ecosystem and the water by the target date of 2025.

To ensure that each state met the goals outlined in the agreement, the EPA required each state and the District of Columbia to submit a series of plans, known as Watershed Implementation Plans (WIPs) outlining how they would achieve their specific pollution goals. The third phase of these plans for each state was due to the EPA on August 2019. The EPA concluded that Virginia, Maryland, Delaware, the District of Virginia, and West Virginia would all achieve their pollution goals by the allotted time, but Pennsylvania and New York had failed to meet their planning targets. According to the EPA’s own analysis, Pennsylvania’s Phase III plan would only meet 75% of its reduction target and New York’s Phase III plan would only meet 64% of its reduction target.

Nevertheless, the EPA has not required Pennsylvania or New York to prepare new Phase III plans to reach their target reduction goals. The EPA’s failure to require Pennsylvania and New York to come up with new plans has allowed dangerous pollution to flow form these states into the Bay. As the attorneys general argue in their complaint, “by failing to require Pennsylvania and New York to develop and implement Phase III [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.”