Cape Cod Nitrogen Lawsuits May Set Precedents, But Consequences Are Hard To Predict
By: Brian Kehrl
Environmental law experts said this week that the lawsuits begun last week by two advocacy groups dealing with nitrogen pollution on Cape Cod take a creative legal approach that seems intended to draw the attention of the federal government.
The impact of the suits locally, like the prospects for the suits’ success, is hard to judge, but they could have consequences reaching far beyond the bays of Cape Cod, according to legal experts asked to analyze the lawsuits and interviewed separately by the Enterprise.
“I think they raise compelling legal issues that involve the frontiers of the Clean Water Act,” said James R. May, a law professor at Widener University in Delaware, where he founded and codirects a master’s of marine policy program.
But while they may attract regulatory pressure from the federal Environmental Protection Agency, they do not seem intended to attract funding along with it, said Robin K. Craig, a professor and associate dean for environmental programs at Florida State University College of Law.
The legal actions, initiated last week by the Conservation Law Foundation and the Coalition for Buzzards Bay, were described by the two advocacy organizations as being aimed at provoking a faster and more rigorous cleanup of the polluted bays around the Cape.
They jointly filed two separate legal actions. The formal complaint filed against EPA asks the federal agency to deem septic systems and other sources of nitrogen to be “point sources” of pollution, which call for more strict regulation than “nonpoint sources.” The suit against EPA focuses on how the groundwater here serves to transport nitrogen from septic systems, stormwater drains, and wastewater treatment plant discharges to surface water like Popponesset and Waquoit Bay. Historically, septic systems have been considered nonpoint sources, but the suits ask that EPA consider them point sources in the nitrogen pollution budgets approved for each bay in the region.
The second legal action was a notice of intent to sue EPA, the Barnstable County Board of Commissioners, and the Cape Cod Commission for failing since 1978 to update an annual wastewater plan required under the federal Clean Water Act.
Local and regional wastewater planning experts have almost unanimously said that towns like Mashpee that have already begun figuring out how to control nitrogen pollution should continue on their present course.
The suits open what is likely to be a long legal chapter, likely to take years to play out, and involving some of the most dynamic issues for water pollution across the country.
“Nitrogen pollution in general is one of the last big problems under the Clean Water Act,” said Ms. Craig, who is part of a federal commission to clean up the nutrient pollution in the Mississippi River and Gulf of Mexico.
The nuanced legal arguments used in the suits fit into a larger national context, in which the Clean Water Act has already been used to clean up the most flagrant problems, like the infamous burning Cuyahoga River in Ohio, said Mark A. Latham, a professor of law at Vermont Law School. The big pipes and big water polluters, “the low-hanging fruit,” are now being watched and regulated, he said, so environmental advocates have turned their sights to the more complicated and difficult issues like nonpoint source pollution.
In that respect, the issues here are strikingly different than the situation in Boston Harbor, when lawsuits forced the costly improvement of wastewater and stormwater treatment, Mr. Latham said. Whereas in Boston poorly treated, and at times untreated, wastewater was leaking into the harbor, causing clear pollution and public health issues, on the Cape the issue is less direct, Mr. Latham said.
“These are really very creative approaches,” said William Andreen, a federal Clean Water Act expert and professor at the University of Alabama School of Law.
The provision of the Clean Water Act referenced in the notice of intent to sue EPA and the two county agencies has been largely forgotten for two decades or so, Mr. Andreen said. The law requires a regional planning process to be updated annually and approved by the state and EPA.
It was first used as part of a construction grant process under which EPA distributed about $5 billion a year to municipalities and other entities constructing wastewater treatment plants, he said. “The planning process was designed in part at least to help us design waste treatment plans that were efficient and effective. So they pushed regionalization projects. Instead of four or five municipalities right up next to each other having four or five different plants, they might be combined together,” Mr. Andreen said.
But when the direct federal funding for construction dried up in the 1980s, with Congress favoring a low-interest loan program instead of a more traditional public works construction program, the plans likewise fell out of favor, he said.
Mr. Andreen said intent to sue is aimed strictly at a planning provision, which would not have direct ramifications unless the contents plan itself called for expedited action or a certain approach to removing nitrogen.
But while the law is clear that the plans are required, it does not specify what the EPA should do if plans are not updated, Mr. May said. “The question is whether the EPA has a mandatory duty to step in when a state does not perform its duties under the Clean Water Act,” Mr. May said.
While the complaint filed against only EPA takes aim at a different section of the law, Mr. May said the two suits have an underlying connection. The regional treatment plan is one of the most effective tools in the Clean Water Act to regulate nonpoint sources, he said.
“The unified theory of the two is that the plaintiffs are using interesting important legal theories to try to lead to better planning to reduce nitrogen loading in these estuaries around Cape Cod. And the Clean Water Act is a very imperfect federal statute, but it does provide some mechanism to achieve the goals it lays out,” Mr. May said. “Most to the point, it is trying to get EPA’s attention concerning nitrogen loading on Cape Cod...Perhaps these organizations are frustrated that there hasn’t been enough attention or enough effective outputs from the state of Massachusetts, so the next best means of addressing the issue is to turn to the federal agency.”
Mr. May said that federal courts have long recognized that groundwater serves as a vehicle to transport pollutants from a source to a water body, particularly for stormwater.
But Mr. May, like the other experts, said that septic systems could be problematic to establish as a point source, because by design they are diffuse.
Mr. Andreen said septic systems, however, because they serve as a collection point for water with pollutants, could be considered point sources. He said a 1980 case in Alabama, Sierra Club v. Abston Construction Co., found that if retention ponds used to collect polluted water from mining operations leaked, they should be treated as point sources.
“It is pretty novel, I suppose,” Mr. Andreen said of the Cape Cod lawsuit. “It is a thought many people have had for many years, and it is somewhat of an extrapolation from the Sierra Club versus Abston case. But I am not sure it has ever been put forward as the basis of a lawsuit before.”
Mr. May said that if the suit is successful, it could lead to the state being more stringent with existing and new point source permits, because there is less room under that portion of the pollution allowance, known as a Total Maximum Daily Load, to go around.
Even though the suit specifically cites the Cape’s sandy soil as a reason for the new enforcement, Mr. Andreen said a decision on the question could have ramifications across the country. And Cape Cod is not alone in dealing with septic systems and their environmental impact, he said. About a quarter of septic systems across the country are believed to be failing.
A small section of the suit against EPA asks that climate change be factored into the nitrogen TMDLs for the bays. Because climate change is likely to create added stresses on the ecosystem, there should be a larger margin of safety, and therefore lower nitrogen targets for towns to meet, in order to ensure that the bays can return to a healthy condition.
“As far as I know, this is the first time that climate change has been built into a TMDL argument that way,” Ms. Craig said. “It is definitely to set a precedent.”
She said this section of the case follows a recent trend in which federal courts have nearly universally ruled that climate change should be taken into account when enforcing environmental laws, like the Endangered Species Act and the National Environmental Policy Act.
She pointed to a key case settled earlier this year involving Washington State, in which the Center of Biological Diversity sued EPA to list coastal waters as “impaired” under the Clean Water Act because rising levels of carbon dioxide in the atmosphere have reduced the pH of water, leading to what is known as “ocean acidification.”
Ms. Craig said the logic—that climate change should be taken into account because it will likely affect water quality and multiply the negative effects of nitrogen pollution—fits into the premise behind the Clean Water Act, of protecting the nation’s waterways. “It does change the game for what the waters can tolerate, pollution-wise,” she said.
Mr. Andreen said that while the logic of taking climate change into account is clear, it also could slow down the cleanup process on the Cape. “I’d hate to see a lot of progress on TMDLs held up for years while they try to do it,” he said.
Ms. Craig doubted whether the legal actions were intended to attract federal money. Some environmental suits are transparent in their interest in forcing the federal government to spend money to fix a problem, she said, and these are not. “I do not see anything in the lawsuit that says this is a proxy to get the federal government to move on the money,” she said.
“I think it is just a regulatory matter,” she said, aimed at the federal government not for money, but in an effort to have a broader impact. “If you win against the EPA, you have won against a lot of municipalities at once.”
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