Beyond Atlanta

Georgia, I Love You, But You’re Bringing Me Down; Please Stop Degrading Environmental Oversight and Cooperation When You Need it Most

As many have heard, the US Supreme Court just upheld the EPA’s crazy scheme to regulate interstate air pollution. It’s crazy not because the idea of needing to federally-regulate something that freely moves across state lines is crazy, but because the scheme has been so difficult to implement.  Science has come a long way in tracking and predicting air flow, but it’s nearly impossible to precisely identify how air particles will move across a vast amount of space and time.

This imprecision makes it inherently difficult to regulate and manage air pollution across state lines though we know such action is a vital necessity. We, especially Georgians, should see the same need for such action regarding land use regulations to protect not just important aspects of land, but the quality and quantity of our water supply.

While the Supreme Court provided a win for environmental protection, the case highlights the growing resistance to what we already learned 40 years ago: oversight and cooperation is needed to protect the beautiful and fragile environment that provides biological and economic sustenance. Before we learned the need for cooperation and control and created the EPA and the Clean Water Act, Clean Air Act, CERCLA and so on, rivers caught on fire, thousands died from “London Fog,” entire communities suddenly contracted rare diseases. Before, people were strangely dying of cancer, two-thirds of our water bodies were hazardous to the human touch, and some communities were so polluted that the sun was merely a mirage in the sky. Before we learned better and accepted that the earth isn’t bound by our superficial and arbitrary human-imposed political boundaries the country was an environmental disaster zone. We realized the need for cooperation and oversight and aptly corrected our mistakes through political will and common sense.

Don't Forget We're Still in Dire Need of Water wunderground.com

We May Not be in a Drought Now, But Don’t Forget
wunderground.com

Georgia and many others states are intent on reverting back to a 1950’s understanding of environmental problems. In the Supreme Court case at issue, the state joined many others in its filing of an amicus brief (a legal opinion filed in support of an issue by a party with no legal interest in the case) against the EPA’s ability to impose regulations on upwind states under the Clean Air Act.  This is just the latest example of the state’s unwillingness to recognize the need for environmental and regulatory cooperation. Everyone in the region knows we are suffering from a serious deterioration in both water quality and water quantity. The “water wars” being waged between Georgia, Florida, and Alabama is a prime example of states trying to compete over resources that know no human boundaries.

The federal government, and more specifically the EPA, isn’t needed if the states can cooperate and reach an agreement that furthers the welfare of all those involved. However, cooperation seems to be taking a back seat to petty squabbling that has lasted for 20 years. History has shown that when states need to compete for resources the very resources we depend on suffer.

Polluted resources or no resources are not just bad for the general welfare of humans, but also the economic welfare of humans. Business and industry depend on a flow of quality natural resources. If states cannot reach effective agreements that protect resources for the benefit of everyone then a third party needs to take control.  This is exactly what we learned 40 years ago and it’s the reason why we created the EPA and tough federal regulation.

While Georgia has done an admirable job in allocating water resources within the state and creating general water plans, it lacks any statewide regulation on land use control to mitigate pollution and manage development to effectively conserve water resources. As noted on this site, the GA Assembly recently limited the state’s ability to impose statewide buffer zones along certain streams.

So, one vital control we has been eliminated. Even when Georgia passes progressive land use or water controls it is useless if surrounding states do not adopt similar approaches since water easily passes through borders. At a time when we need more cooperation and probably more help from an impartial third party, Georgia and many other states are actively working to prevent cooperation and oversight.

In an act similar to the what Georgia did in the recent Supreme Court decisions, it joined 20 other states from across the country in filing an amicus brief in American Farm Bureau Federation v. EPA opposing the EPA’s ability to impose stricter standards to protect the water quality of the Chesapeake Bay.  While the Clean Water Act has been effective in dramatically reversing pollution levels, it has done nothing for the Chesapeake Bay.  The largest estuary in the United States, an estuary that produced some of the best oyster and crab harvests in the country and was the economic livelihood for thousands of Marylanders and Virginians has been reduced to a dead zone.

Increased nitrogen and phosphorous runoff from chicken farms and suburban lawns has caused excessive algae blooms which block out sunlight and reduce the amount of available oxygen for natural grasses and wildlife.  The Patuxent River Basin in southern Maryland has seen land use development increase from three percent in 1950 to over 35 percent in 1980 – surely much more has occurred since then.  More than half the rivers and streams in the Chesapeake Bay watershed have “poor” or “very poor” ratings from the EPA. Previous regulations proved to be completely ineffective as the health of the Chesapeake has never been worse.

Last September, in American Farm Bureau, the Middle District of Pennsylvania ruled in favor of the EPA’s ability to impose stricter restrictions on nitrogen, phosphorous, and other sediments over a wider swath of land in the Chesapeake Bay watershed.  This ruling caused the states to file the previously mentioned briefs in the Appellate Court. When history shows us the need for environmental transboundary regulations and the general inability for states to do this by themselves, why are states located on the other side of the country filing briefs to make sure the EPA can’t impose such restrictions on the Chesapeake Bay?

The simple explanation is that the ruling sets a precedent for agricultural environmental regulation, which negatively affects agricultural states. The more attenuated explanation is that certain states don’t want the federal government to regulate the environment out of ideological preference for states’ rights. Both explanations account for a desire for those states to challenge the EPA on their own accord, but the explanations also make those states susceptible to being effectively lobbied to challenge the EPA by notorious anti-environment interest groups located halfway across the country. Despite the history and science that shows the need for federal regulation over matters that clearly and wholly cross state boundaries, these states insist on reverting back to 1950’s standards.

downtoearthnw.com

downtoearthnw.com

Our major federal environmental legislation was passed with bi-partisan support.  In 1972 the Clean Water Act passed the Senate 86-0. A sweeping bill that gave the federal government oversight over all interstate water bodies and allowed for the imposition of heavy regulation passed unanimously. Despite wide public and congressional support, President Nixon vetoed the bill.  The Senate responded by passing it again by a vote of 52-12.  In response to the Love Canal disaster, CERCLA (aka Superfund) was passed by the House with a vote of 274-94.  A law that holds liable any person who currently or previously owned a polluted property, meaning a party is liable whether it caused the pollution or not, was passed with Republican support.

While the Supreme Court’s recent ruling is a major case, the American Farm Bureau case is more relevant in addressing land use regulation and other important issues in Georgia and the southeast. This case concerns the EPA’s ability to set certain pollutant standards for the Chesapeake Bay under the Clean Water Act (CWA). The CWA requires states to set water quality standards for all transboundary or interstate water bodies.  The bodies are then put on an attainment or nonattainment list depending on whether they meet the standards.

The water bodies on the nonattainment list, called a 303(d) list after the statutory provision, are then given Total Maximum Daily Loads (TMDL) for each pollutant. The TMDL takes into account both point-source and non-points source pollution.  That is, pollutants that come from identifiable places such as a factory pipes (point sources) and pollutants that runoff from general unidentifiable areas such as yards and farms (non-points sources). In Clean Water Act terminology, the TMDLs set Waste-Load Allocations (WLA’s) for point sources and Load-Allocations (LA’s) for non-point sources.

This however is as far as the CWA goes in regulating non-point source pollution. States issue NPDES permits to point sources, such as factories, that must take into account the TMDL requirements. So a permit must take into account how much general non-point source pollution there is in a water body when it tells the factory how much of a certain pollutant it is allowed to discharge.

Georgia and the other states that filed amicus briefs argue that the EPA has gone far beyond the power given to it by Congress in the CWA. The specific EPA regulations at issue in the case essentially allocate TMDLs among several states, including states that do not directly touch the Chesapeake Bay. So the TMDLs were created based on the desired water quality for the Bay and the EPA is then applying those standards to waterways that contribute water to the Bay, though the waterways are located in states that do not touch the Bay.

Chesapeake Bay Watershed nrcs.usda.gov

Chesapeake Bay Watershed
nrcs.usda.gov

While the EPA cannot implement its own TMDL standards and Water Implementation Plans (WIPs) designed to meet those standards, it has the power to veto the standards and plans submitted to it by the states. The CWA was created with federalism in mind: Congress and the EPA create guidelines, the states create plans and regulations based on those guidelines, the EPA approves plans, and then the states issue permits and implement regulations. Note: if a state does not have an NPDES permitting program, the EPA can create these standards and plans unilaterally, but all states now have NPDES programs. 

The states asserted that the EPA forced the TMDLs and WIPs on the states, but the court ruled that this was far from reality.  In actuality, seven jurisdictions- Virginia, Maryland, New York, Pennsylvania, Delaware, District of Columbia, and West Virginia – have been working for many years on water quality standards and all actively participated in the creation of the TMDL standards. Importantly none of those states filed any legal action stating that the EPA coerced them into agreeing to the new standards.

The states also argued that the EPA overstepped its authority by dividing the TMDL, the total amount of a pollutant that can be in a river, into WLAs and LAs. The argument is that that the EPA cannot divide the amount of the pollutant between point and nonpoint sources.  Under administrative law, an agency is given deference to determine the meaning of the statute if the statute is ambiguous and the determination is something envisioned by Congress.

The Court found that the CWA is clearly ambiguous as to whether both point and nonpoint sources can be considered in calculating the TMDL – no provision states whether this can or cannot occur. Calculating TMDLs is highly scientific; therefore this is the type of agency interpretation envisioned by Congress. Scientists at the EPA are much more equipped to be determining scientific equations than member of Congress.  Additionally, legal precedent in other circuits upholds the EPA’s ability to do this.

The most significant argument made by the plaintiffs is that the CWA doesn’t allow the EPA to apply TMDLs to upstream states. Simply put the EPA isn’t allowed to set pollutant amounts for water bodies in states that do not touch the Chesapeake Bay and it isn’t allowed differentiate between industries.  Setting such standards is really the entire point of the Clean Water Act and federal regulation.

If the EPA cannot protect water bodies by imposing restriction on rivers that feed into the water body, what is the point of setting restrictions? It would serve no purpose to the Bay if strict regulations were set for Maryland, but not for other states within the Chesapeake Bay Watershed. Pollutants in West Virginia will eventually reach the Bay, so if the point is to protect the Bay then restrictions must be placed on appropriate water bodies in West Virginia.

The court agreed with the EPA because the CWA doesn’t address this fact pattern; it simply allows the EPA to set standards to meet the necessary water quality requirements. Legislative history and the point of the CWA also seem to allow the EPA to take this watershed approach, according to the court. Though not directly on point, case precedent also appears to allow the EPA to take into account the welfare of downstream states when it sets standards for upstream states.

Apalachicola-Chattahoochee-Flint River Water Basin sam.usace.army.mil

Apalachicola-Chattahoochee-Flint River Water Basin
sam.usace.army.mil

Georgia is in the exact same situation as Maryland and Virginia. The actions of Florida and Alabama directly affect the quantity and quality of water here in Georgia.  Regardless of what Georgia does in terms of land use and water planning, our resources are at the whim of other states. Just likes the states in the Chesapeake Bay watershed, we are dealing with a resource that benefits everyone either economically or socially.  History is littered with examples of why it hurts everyone for us to compete over natural resources and completely disregard the fact that resources know no boundaries.  We learned it back in the 1950s and we continue to learn it with the Chesapeake Bay.

If Georgia wants to make sure our resources will continue to be in limbo it should continue to fight oversight and cooperation. If it wants to make potential businesses question whether it’s wise to locate in a state that may or may not have adequate amounts of clean water it should continue to fight oversight and cooperation. If it wants to waste money pitching legal battles then it should continue fighting oversight and cooperation. Clearly a country where rivers catch fire, people die from uncontrolled pollution, and no informed parent would dare let their child swim in the stream out back is the best solution.

The Earth doesn’t acknowledge our arbitrary human boundaries. Operating under those false pretenses in the context of vital natural resources doesn’t just disregards science and common knowledge, it imperils the livelihood of everyone. We all depend on these resources and should expect the law of an organized society to uphold our right to effectively access the fundamental aspects of our planet.

It is said that when astronauts go into space they experience something known as as the “overview effect.” They no longer see Earth as the host of competing factions, but as a fragile ecosystem supporting life in a hostile universe. We sorely need this perspective to take hold in the population that hasn’t been to space and hasn’t directly seen our planet as simply a member of the universe.

Disclaimer: The information contained in sustainableatlantaga.com (hereinafter “this site”) should not be construed, or relied upon, as legal advice. By accessing this site it is understood that no attorney-client privilege has been formed between you and the publisher. This site is neither an advertisement for legal services nor an invitation to form an attorney-client relationship. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s