Virginia helps successfully defend Chesapeake Bay restoration

Source: Office of the Attorney General

Today, a three judge panel of the Third Circuit Court of Appeals unanimously upheld the right of Virginia and other Chesapeake Bay states to work together to protect and restore the Bay. In April 2014, Attorney General Mark R. Herring filed an amicus brief in American Farm Bureau v. U.S. Environmental Protection Agency to protect Virginia’s efforts, making the Commonwealth the first state to defend the Bay plan on appeal. The brief laid out the economic, environmental and historic reasons Virginia was compelled to weigh in on the side of the Bay and the reasons that the long history of cooperation between Bay states should be honored.

The brief also refuted arguments made in an amicus brief from 21 attorneys general, all but one of whom were from outside the Bay watershed, that opposed the ability of Bay states and the EPA to work cooperatively to address the health of the Bay, which is North America’s largest estuary and a major economic force for the region, annually contributing an estimated $2 billion and 41,000 jobs from commercial fishing, $1.6 billion and 13,000 jobs in saltwater angling, $70 million in crabs, and $680 million in tourism.

“Because of today’s ruling, Virginia and our fellow Bay states will be able to continue the important and urgent work of restoring the health of the Chesapeake Bay,” said Attorney General Herring. “The most promising plan for Bay restoration was under attack from out of state special interests and I couldn’t let that go unanswered. The economic, recreational, environmental, health, and intrinsic value of clean water and a strong, healthy Bay compelled us to come to its defense. We’ve still got a long way to go to get the Bay back to where we want it, but today’s ruling lets us stay on this promising trajectory.”

Noting that “water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come),” the panel ruled in favor of the Bay because:

“Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay-to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10-a goal our elected representatives have repeatedly endorsed.”

At issue in the case was the EPA’s 2010 adoption, under the federal Clean Water Act, of a scientifically-sound “pollution diet,” also called a Total Maximum Daily Load (TMDL,) based on watershed management plans developed by the individual states whose waters flow into the Chesapeake Bay.  Virginia’s brief pointed out that it is “undisputed that the Bay TMDL details at issue…are creatures of the Bay States’ authority,” with the states themselves creating and committing to individual plans which were then incorporated by the EPA into the final TMDL blueprint.

Under governors of both parties, Virginia has frequently entered into agreements with other Bay states and the EPA to protect the Bay. For example, the administration of Governor Bob McDonnell worked cooperatively with the EPA to address concerns throughout the process and reach agreement on Virginia’s TMDL plan. Thus, the claims in the appeal that the EPA has usurped state authority were simply wrong; the Bay states have long been and continue to be partners with each other and the EPA in protecting the Bay.

The district court upheld the TMDL plan, noting that “that the procedures established to ensure public participation in the TMDL drafting process were sufficient” and “the framework established by the Bay Partnership in developing the Bay TMDL is consistent with the provisions of the [Clean Water Act] and [Administrative Procedures Act.]”

Attorney General Herring’s decision to file a brief in support of the Bay was announced at historic Fort Monroe in Hampton. The decision was applauded by advocates including the Chesapeake Bay Foundation, the League of Conservation Voters, and the James River Association, as well as individuals and small business owners who depend on a clean and healthy Bay to make a living.