The Supreme Court’s February 29th decision not to review a case challenging the legality of the Chesapeake Bay Clean Water Blueprint is great news for the Anacostia and Potomac Rivers. In general, the case was about whether the EPA could set specific targets and deadlines that the states—and by extension—cities and landowners must follow to reduce pollution to the nation’s waters. The details of the case may be numbing to those who are not water lawyers or policy wonks, but the immense benefits of letting the lower courts’ decisions stand will come back to all of us who are DC residents.
The National Association of Home Builders, the American Farm Bureau Federation and several related agricultural interests spent a great deal of money on legal fees trying to convince the judges that the EPA was, as we so often hear from candidates these days, “out of control.” The federal courts told them to sit down. The courts affirmed that Congress’ intention in the Clean Water Act was to clean up and protect the public’s precious water, and that the EPA had the right to work with states to determine the details.
“Congress made a judgement in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution,” according to the opinion of the appellate court, which was upheld by the Supreme Court’s decision not to review. “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…a goal our elected representatives have repeatedly endorsed.” Elsewhere, the appeals court said that the challenge was “long on swagger but short on specificity.”
The federal courts’ decisions in this case are a victory for the Chesapeake Bay Foundation and others that have tirelessly championed a bold plan to rehabilitate the Chesapeake ecosystem. Closer to home, the courts have given us hope that we can and will be able to someday reap the benefits of a clean Anacostia River.
People don’t easily make the association, but the highly-polluted Anacostia is an important part of the Chesapeake ecosystem, too. It flows into the Potomac and then down to the Bay. It once was clean, clear and healthy, but it has been a mess since about the time of the Civil War. The combination of raw sewage overflows, legacy toxics from the now-closed Naval Gun Factory and other industrial uses, and oil, gas and metals from street runoff has been lethal to much of the river’s aquatic life, and has limited safe fishing, boating, wading and swimming. Some progress in cleaning up these sources has been made, and many other initiatives are underway. The DC government, the Prince Georges County government, the Montgomery County government, and DC Water are some of the most creative and energetic jurisdictions in the nation in trying to clean up old pollution and limit new. But we still have a very long path ahead.
Think of what it would be like to someday have the 1200 acre Anacostia Park be a great public civic space, on a slow, safe, clean Anacostia River, in the very heart of the Nation’s Capital. Wouldn’t it be fun to have little kids from Ward 8 playing in the water at the foot of Capitol Hill with little kids from Wards 3 and 4? Or their parents and grandparents being able to canoe and kayak safely? Of course it would. It would make living in Washington so much better for everyone.
Because of the federal courts’ decisions, we can anticipate that the momentum towards that dream will continue. It won’t be easy, but we will get to a clean Anacostia someday.
One more closing thought. The federal Clean Water Act, which was the subject of the case in question, was passed in 1972 with very little opposition in the House and no opposition at all in the Senate. President Nixon then vetoed it because he believed it cost too much. Congress quickly overrode the veto, with 113 Republicans voting to override their own party’s leader. There were conservatives in the White House and in the Congress, but a great many of them felt that the way to make America great was to make sure that every American citizen had full access to clean water. As we know now from Flint and elsewhere, that simple goal has not yet been achieved. We can only hope that, despite the massive change in politics, the Congress might once again affirm that vision as the federal courts have now done.
Executive Director, Anacostia Waterfront Trust