From the 2009 News Archive

Environmental Scholars: Cardin's Bay Bill Constitutional

Environmental Law scholars Professor Rena Steinzor, Robert F. Stanton Professor of Law Robert Percival, also Director of the Environmental Law Program, and Associate Professor Jane Barrett, Director of the Environmental Law Clinic, were among a distinguished group of scholars to send a memo assessing the constitutionality of The Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816) to Senator Ben Cardin ’67 yesterday. The memo, composed with scholar members of the Center for Progressive Reform, was in support of the legislation, disputing arguments posed by opponents of the tighter cleanup requirements.

On October 20 Senator Cardin, Chairman of the Senate Environment and Public Works Committee’s Water and Wildlife Subcommittee, introduced the bill to amend Section 117 of the Clean Water Act, which governs the EPA Chesapeake Bay Program. The bill would codify the Bay Total Maximum Daily Load (TMDL) development and implementation process into federal law, including deadlines, the content of the state’s watershed implementation plans, and the process by which the EPA reviews and approves or disapproves of plans. The bill also aims to increase the ability of citizens or third-party groups to sue the EPA and the states for the failure to meet their TMDL and Watershed Implementation Plan (WIP) obligations.

Opponents of the proposed bill argue that it is unconstitutional, citing the Tenth Amendment with respect to mandates on the states and the Eleventh Amendment with respect to the legislation’s citizen suit language.

"To remedy these potential misinterpretations of S. 1816, we recommend that you include a separate citizen suit provision in the legislation, rather than simply referring to existing section 305 of the Clean Water Act," the distinguished scholars recommend in the memo. "The provision should clarify that citizen suits may only be filed against a state officer for injunctive relief. The provision should explicitly authorize citizen suits challenging a state’s failure to meet two-year commitments and standards set in the watershed implementation plans, as well as violations of NPDES permits or EPA orders."

According to the Chesapeake Bay Foundation, on the same day that Senator Cardin introduced the bill with three other senators, Elijah Cummings ’76, senior member of the House Transportation and Infrastructure Committee (T&I) and 10 other House members, including House Majority Leader Steny Hoyer, T&I Committee Chair Jim Oberstar, and Water Resources Subcommittee Chair Eddie Bernice Johnson, introduced a nearly identical bill, HR 3852.

Posted by Carrie Oleynik on November 24, 2009

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