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In Chesapeake Bay, It's The EPA Vs. Federalism

The Chesapeake Bay is a mess. For decades now, fertilizer run-off from nearby suburbs and farms has been spilling into the water, triggering immense algae blooms that have been depleting underwater oxygen and creating giant "dead zones" that kill off marine life en masse. And it's not getting any better: The EPA has launched a number of cleanup initiatives over the years—the first one as far back as 1983—and all have failed.

So, on Thursday, when the EPA issued yet another series of reports on a plan to clean up the bay, observers could be forgiven for being skeptical. Still, EPA head Lisa Jackson insists that this time the agency really means it—she's staked out the Chesapeake as a proving ground to show that the agency under her watch can be genuinely effective. "We want to make this a laboratory to show that it can be done," she told reporters. So how likely is it that she'll succeed? 

That's where things get tricky. According to Michelle Perez, a senior analyst at the Environmental Working Group and author of Facing Facts in the Chesapeake Bay, the EPA's heart may be in the right place, but its authority to clean up the bay is weak. The largest polluter in the Chesapeake, after all, is agriculture and, under the Clean Water Act, the EPA is only allowed to directly regulate the large Concentrated Animal Feeding Operations (CAFOs)—which, while noxious, make up only a small percentage of farms in the area. Most farms, meanwhile, are overseen by the six bay states—Maryland, Delaware, Pennsylvania, Virginia, West Virginia, and New York. Over the years, those states have tried, gently, to coax farmers into doing things like planting cover crops to avoid run-off, but even with cash incentives only about half of farmers have taken the states up on their offer. 

Perez argues that these voluntary, cost-sharing approaches haven’t worked, but it's unclear if the federal government can actually make the states change their ways. The EPA reports released yesterday mentioned that it might be possible to deny federal grants to the states as a form of leverage, but these grants only amount to $50 million per year total—not necessarily an overwhelming threat (plus, the money at issue is used for clean-up and environmental regulation, so withholding the grants would be counterproductive). Another idea mentioned was that the EPA could start denying permits for new developments, factories, or shopping malls in the Chesapeake states unless those developers buy offsets to reduce pollution in the agricultural sector. If implemented, measures like these could put real oomph behind the EPA’s efforts, but they might just as likely trigger a backlash among farmers and suburbanites. After a quarter century of failed initiatives, however, the bay can hardly afford another weak wristed attempt.