AG Mark Herring to Sue EPA Over Failure to Protect the Chesapeake Bay

RICHMOND (May 18, 2020) – Attorney General Mark R. Herring announced today that he will sue the Environmental Protection Agency (EPA) over its failure to protect the Chesapeake Bay. In a “Notice of Intent letter” sent to the EPA today by Attorney General Herring, Maryland Attorney General Brian Frosh, and District of Columbia Attorney General Karl Racine, Virginia, Maryland and the District of Columbia allege that the EPA abandoned its responsibility to ensure that certain states upheld their terms under the Chesapeake Bay Watershed Agreement to reduce their pollution levels to restore local waters and the Bay in the allotted timeframe. The Chesapeake Bay Foundation has filed a similar notice coinciding with Virginia, Maryland and the District of Columbia.

“Protecting and restoring the Chesapeake Bay requires a comprehensive effort by each of the watershed states as well as the EPA,” said Attorney General Herring. “As the administrator of the Chesapeake Bay Agreement, the EPA must treat each of the partners equally and make sure every state is pulling its weight and upholding its portion of the agreement, but instead, the Trump EPA simply rubberstamped plans that are plainly inadequate. I hope we are able to come to an understanding that is beneficial for all parties, while keeping the health of the Bay at the forefront.”

In their Notice of Intent, Virginia, Maryland and the District of Columbia explain that it is up to the EPA to make sure that the partner states are adhering to the agreed upon terms in the Chesapeake Bay Agreement, but that the EPA “has failed to ensure that New York and Pennsylvania develop Phase III [Watershed Implementation Plans] that achieve and maintain these goals…the Administrator therefore has breached the nondiscretionary duty set forth…Consequently, the State of Maryland, the Commonwealth of Virginia, and the District of Columbia intend to sue the Administrator.”

“The Chesapeake Bay is one of our country’s most valuable natural resources,” said Maryland Attorney General Brian Frosh. “Restoring the health of the Bay will take a coordinated, multistate effort with every state sharing the burden. The EPA has abandoned its responsibility to regulate and manage the efforts of the Bay states and together, we fully intend to hold the EPA accountable and not allow it to step away from its regulatory duty.”

“Our coalition of State Attorneys General will not allow the EPA to walk away from its enforcement obligations and undermine decades of work to reduce pollution across the Chesapeake Bay watershed,” said Washington D.C. Attorney General Karl A. Racine. “The District is committed to reaching our pollution reduction goals, but if other states are not doing their part, and the EPA is not keeping watch, we will fail to restore the Bay and our local waters, including the Potomac River.”

“After decades of failed commitments, the Blueprint is working. Pollution is down, crabs are rebounding, and the dead zone is getting smaller,” said Chesapeake Bay Foundation President William Baker. “EPA’s failure to hold Pennsylvania and New York accountable undermines the integrity of this historic federal-state partnership. EPA is the enforcer, just as the law requires. It is up to the courts to compel EPA to do its job. Clean water for our children and grandchildren will be the reward.”

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 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 reduction 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 Columbia, 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 levels to flow from these states to the Bay. As the attorneys general state in their Notice of Intent “the obligations of Pennsylvania and New York in the Bay Agreement…are critical to restoring clean water in the Chesapeake Bay and its streams, creeks and rivers. Yet in failing to ensure that these jurisdictions develop management plans to achieve and maintain the pollution reductions…EPA has allowed these jurisdictions to send approximately ten million excess pounds of nitrogen into the Chesapeake Bay and its watershed every year, and threaten the success of efforts to restore the Bay.”