Sun rises over Chesapeake Bay

Dawn on the Chesapeake Bay. Two environmental groups contend that pollution trading would worsen the estuary's water quality problems. (Barbara Haddock Taylor / October 3, 2012)

Two Washington-based environmental groups filed suit Wednesday to block pollution trading in the Chesapeake Bay, contending the market-based cleanup program violates the federal Clean Water Act and will undermine rather than help efforts to restore the ailing estuary.

Food & Water Watch and Friends of the Earth contend in the joint filing that the Environmental Protection Agency acted unlawfully in authorizing Maryland and other bay watershed states to set up programs for buying and selling nutrient "credits" as part of the "pollution diet" that the federal agency has imposed for restoring the Chesapeake's water quality.

"If trading is allowed to move forward it’s going to allow new and increased pollution discharges into the bay’s watershed," Wenonah Hauter, president of Food & Water Watch, said during a telephone press conference announcing the suit.

A spokesman for the Justice Department, which represents EPA in such cases, declined to comment.

Hauter and others said they were acting in part because they feared the pollution trading approach being developed in the six-state Chesapeake region could be adopted for dealing with other degraded waterways. EPA has said the bay trading program could be a national model, they said.

The groups' lawsuit comes on the eve of a federal court hearing in Pennsylvania in a case brought by agriculture and home-building groups challenging EPA's bay pollution diet on other grounds.  The industry groups contend that the federal agency exceeded its authority and relied on flawed science in drawing up a "total maximum daily load" of nutrient and sediment pollution for the bay.

Scott Edwards, a lawyer with Food & Water Watch, said that unlike the industry challenge, the environmental groups do not seek to overturn the entire bay cleanup plan, just to block any use of a scheme that would allow polluters to pay others to reduce discharges of nutrients.

Proponents have argued that trading can be a more cost-effective way of reducing nutrient pollution, as curbing fertilizer runoff from a farm field can often be done for far less expense than upgrading a sewage treatment plant or retrofitting storm drains in a city or suburb.

But Fred Tutman, the Patuxent Riverkeeper, said such transactions were a recipe for prolonging or even worsening water quality in poor and minority communities.

Others have raised similar concerns, and EPA officials have said they're working to ensure that trading doesn't result in inequities or actual declines in water quality anywhere.

The issue has divided environmental groups, with some, like the Chesapeake Bay Foundation, favoring trading as long as there are appropriate safeguards. The environmental groups suing EPA, though, contend there's no way to prevent abuses, and that trading violates the overall regulatory approach of the 40-year-old federal Clean Water Act, which requires pollution sources to reduce their discharges.

The two environmental groups are represented by Columbia University law school's environmental law clinic.