Chesapeake Bay Action Plan

(Posted by Bob Gallagher.)

After decades of dissembling and broken promises, the President’s Executive Order 13508 and the implementing “pollution diet” proposed by the EPA represent the best chance we have had in a generation to actually start cleaning up the Chesapeake Bay. It shouldn’t come as a surprise then that corporate polluters have ramped up their opposition to the pollution diet to unprecedented levels to include massive spending on media advertising, lobbying, campaign contributions, litigation and scientific dirty tricks.

During one 60-minute segment of television news programming, I recently saw four oil and gas industry public relations ads, including one extolling the benefits of “fracking,” the process of extracting natural gas by injecting million of gallons of water and toxic chemicals into the ground. A legislative measure offered by Representative Goodlatte (R-Virginia) would have stripped the EPA of funding to implement the pollution diet. The Farm Bureau has sued EPA to prevent implementation of the pollution diet. Corporate polluters have funded bogus studies to undermine the science behind everything from climate change to the consequences of fracking.

Now some congressional beneficiaries of corporate polluters’ first amendment largess would require EPA to do a cost-benefit analysis of the pollution diet. It would not analyze the cost to the public of continued pollution of the bay and its tributaries. Rather, it would seek to determine whether the cost of implementation by EPA of the pollution diet would outweigh the value of the benefits of the regulation.

The idea is breathtaking in its perversity. Would we require the prosecutor of Bernie Madoff to demonstrate that the costs of investigation and prosecution would be less than any fine expected to be recovered? We are talking about enforcing a law that protects a public treasure.

The bay is owned by all of us. The Clean Water Act recognizes that by requiring that pollution of our waters stop unless allowed by a permit. In the decades since its passage, polluters have undermined the CWA by gutting funding for implementation and enforcement. Some point to this as the reason we have been unable to make the needed progress in improving the Bay’s health. Polluters’ attack on the pollution diet is a continuation of those efforts to undermine the requirements of the CWA.

Not even the worst corporate polluters pollute for pollution’s sake. It is all about the money. It is not about the role of government. Corporate polluters are happy to accept corporate welfare. It is not about states’ rights. Polluters frequently choose the regulator that brings the most benefit to their bottom line. It is not about jobs. We will have a stronger economy and more jobs with a clean bay. The only principle behind opposition to the pollution diet is money.

Corporate polluters do not expect indefinitely to avoid rules that will restrict their ability to pollute the bay. All they need to do is delay them. The longer they delay them, the more money they make by avoiding the costs of pollution reduction.

Historically, American corporations have made money and thrived by improving processes and productivity, opening new markets, fostering innovation and adapting new technologies. These profits are not easily achieved. They require hard work and risk of investment capital.

Arbitrage is profiting through the exploitation of an imbalance in the market with little or no risk. In this age of deregulation, corporations increasingly seek profits through creating or maintaining regulatory imbalances in the markets. The opportunities for huge imbalances, like those created by regulatory monopolies, have diminished. But, opportunities to arbitrage regulatory costs can yield huge risk-free profits. Even after spending millions of dollars on public relations advertising, lobbyists and campaign contributions, corporate agriculture—including corporate operators of factory farms—will reap millions in profits from delaying the day when they will have to clean up their animal waste, stop spreading arsenic and other contaminants on the land and stop releasing millions of tons of contaminated sediments into our rivers and streams. Other industries reap similar benefits from delay.

It is much easier to boost the corporate bottom line by environmental arbitrage—by passing major costs of production to taxpayers and the next generation through the delay of environmental regulation—than it is to create value through increased productivity and innovation. Unless we require that the pollution diet be implemented without delay, we will permit corporate polluters, through environmental arbitrage, to continue to steal a public treasure a penny at a time. That is the real cost of delay.

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(Posted by Sen. Brian Frosh.)

You may have heard reports that oil and gas companies have leased about 90,000 acres of land in Maryland for drilling in the Marcellus Shale, a rock formation that undergirds the Appalachians from Virginia to Southern New York and is thought to contain trillions of cubic feet of natural gas.

Natural gas offers tremendous opportunity. It is the cleanest burning fossil fuel and can heat homes, run utilities, power vehicles, and help free the nation from foreign oil. It also promises significant economic benefits for western Maryland, as it rests under parts of Garrett, Allegany and Washington counties.

While the benefits are potentially huge, so are the environmental risks. To free the gas, companies pump a toxic cocktail of chemicals, sand and water into the ground under high pressure to fracture, or “frack,” the rock formations. Hydraulic fracturing is a complicated process with many inherent challenges. Pennsylvania has had major problems with drinking water contamination due to faulty drilling wells. There have been thousands of environmental violations, spills, explosions and fires, and air pollution. Communities have to put up with waste-water storage pits that smell like a combination of sewage and gasoline and round-the-clock industrial activity. Partially treated wastewater has also been released into rivers upstream from drinking water intake pipes, a situation that threatens even people who live well away from the area above the Marcellus Shale—but well within the Chesapeake Bay watershed, threatening this national treasure.

The challenges and risks are real. But I am optimistic we can address these problems in ways that will allow safe access to the natural gas. However, since oil and gas drilling are partially exempt from important environmental laws at the federal level, it is up to Maryland—and other states—to make adequate protections.

To protect people and resources, this spring I sponsored MD Senate Bill 634 (Heather Mizeur sponsored a similar bill on the House side) which called for the Maryland Departments of the Environment and Natural Resources to undertake a study, with industry funding, of short- and long-term risks to water quality and to assess the effect of drilling on forests and natural habitats. The study would have also examined the long-term impacts to state resources and recreational lands, and proposed statutory or regulatory changes.

After passing easily in the House, the bill failed in the Senate, with industry wanting production drilling in the study’s second year, something that neither I nor the O’Malley Administration could accept. However, failure is not necessarily a bad thing. The Maryland Department of the Environment has total discretion to issue drilling permits, and it is unlikely to do so without the information that the study mandated in the bill would have provided.

When this issue resurfaces next session, the Maryland General Assembly must pass legislation to ensure we have the proper safeguards in place before we start to drill. We must not let oil and gas companies extract our resources at the expense of families and communities in Maryland.

Sen. Brian E. Frosh (D-Montgomery Co., Maryland) is chair of the Maryland Senate Judicial Proceedings Committee and was chair of the Maryland Senate Environment Subcommittee from 1995 to 2003. He is a Chesapeake Bay Action Plan signatory.

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