D.C. District Court Fails on Pollution Trading: Clean Water Act Trading Lawsuit Dismissed Due to Burden of Proof

Washington, DC–(ENEWSWPF)–December 16, 2013.  Statement from Food & Water Watch Executive Director Wenonah Hauter:

Last Friday, a Washington, D.C. District Court dismissed a lawsuit brought by Food & Water Watch and Friends of the Earth that challenged the legality of water pollution trading under the Clean Water Act (CWA). The groups filed the lawsuit after the Environmental Protection Agency (EPA) sanctioned water pollution trading in its December 2010 Chesapeake Bay Total Maximum Daily Load (TMDL) as a mechanism for polluters to avoid meeting CWA permitting requirements. The legal action sought to have the practice declared illegal. Food & Water Watch is now considering an appeal of the court’s ruling.

The CWA requires point sources of pollution, including waste water treatment facilities and manufacturing plants, to limit their discharges based on strict, technology-based land water quality-based standards. EPA’s trading scheme turns that approach on its head, instead granting these facilities the right to purchase credits in lieu of meeting these standards.

Unfortunately, instead of addressing the legality of this “pay-to-pollute” system, the court dismissed the case on non-substantive grounds, claiming that Plaintiffs have not met their burden of showing that pollution trading has yet resulted in harm to people who live and recreate near facilities that purchase pollution credits.

The decision, if it stands, forces plaintiffs to challenge pollution trading on a case-by-case basis as polluters begin to take advantage of these schemes in the Bay watershed. Despite the court’s refusal to address the ultimate issue before it, Food & Water Watch remains committed to challenging the legality of water pollution trading given the inevitable and significant detrimental impacts on waterways and communities, not just in the Bay, but anywhere water pollution trading is taking hold.

In addition to bringing the facial challenge to trading, Food & Water Watch has already brought two other lawsuits in the Bay watershed where industries were seeking to avoid the CWA permitting requirements by engaging in trading and offsets. In West Virginia, we recently challenged the issuance of a CWA permit to a new wastewater treatment plant to discharge pollutants into the already-impaired Sleepy Creek. In order to avoid the CWA’s prohibition on new discharges into impaired waters, the state wrote the permit to allow the facility to purchase pollution credits from other polluters—potentially hundreds of miles away—as an “offset” for their own discharges, even though the deal would have increased water quality problems in Sleepy Creek. This fall, after a hearing, a panel of administrative law judges remanded the permit to the state Agency for redrafting.

In Maryland, Food & Water Watch also filed a lawsuit after learning that NRG Energy, which operates the Chalk Point and Dickerson coal-fired power plants, was proposing to purchase nitrogen pollution credits from agricultural operations in the state. For several years both of these facilities have been, and continue to be, in significant violation of their CWA nitrogen permit limits. While we are now in the midst of negotiations to ensure that illegal pollution trading approaches are not considered as a substitute for permit compliance, NRG has decided to shut down both coal-fired operations by 2017, removing a significant source of water and air pollution from the Bay watershed.

Challenging and defeating each trade as its proposed to build a body of legal precedents, as this court decision requires, is not only a burden on Food & Water Watch’s limited resources, but also an inefficient use of the judicial system. Nevertheless, Food & Water Watch is determined to continue to fight this scheme to turn our waterways into a marketplace.

While we consider appealing the court’s decision, we will continue to bring water pollution trading case in to the courts and find other ways to achieve our broader goal of having this inherently harmful practice declared illegal. 

Food & Water Watch works to ensure the food, water and fish we consume is safe, accessible and sustainable. So we can all enjoy and trust in what we eat and drink, we help people take charge of where their food comes from, keep clean, affordable, public tap water flowing freely to our homes, protect the environmental quality of oceans, force government to do its job protecting citizens, and educate about the importance of keeping shared resources under public control.

Source: foodandwaterwatch.org