With the election looming, it seems that Congress will not pass new legislation to stop the spread of invasive species from ballast water this year. The House had passed legislation this spring, which was welcomed by some environmental groups but criticized by others for being weaker than the status quo. In part due to the division within the environmental community, the legislation never moved forward. Now that the President has signed the Great Lakes compact, stopping the spread of invasive species from ballast water is policy priority #1 for the Great Lakes. But the issue isn’t as simple as convincing Congress to do something about the problem.
First, we are seeing tremendous policy and legal progress without Congressional action. Several states, including Michigan and Minnesota, have already moved forward on state regulations to control ballast water discharges. Shipping companies have tried, unsuccessfully so far, to strike down Michigan’s new law. The shippers’ challenge to the Michigan law is now on appeal (full disclosure – I’m representing a bipartisan group of state lawmakers including the primary sponsor and author of the law, Michigan State Senator Patty Birkholz, in the litigation).
As the states are developing new policy solutions, environmental groups have also succeeded in forcing the EPA to regulate ballast water pollution (including invasive species) under the Clean Water Act. While these state initiatives and legal victories may not be enough alone to solve the problem, they certainly give environmentalists the upper hand in negotiating new federal legislation and provide a decent back-up if a deal can’t be reached in Congress.
Second, while Congress seems to acknowledge that something must be done about ballast water pollution and the spread of invasive species, the real debate is over the legal tools and approaches that should be used. That’s where the Great Lakes compact can provide a valuable lesson. The Great Lakes compact uses three important tried-and-true legal principles that must be part of an invasive species policy:
1. Citizen enforcement: The Great Lakes compact gives citizens the right to enforce the law against both private violators and government regulators that fail to do their job. We have learned the hard way that government is sometimes reluctant to take on polluters, and thus Congress gave citizens enforcement rights under the Clean Water Act and Clean Air Act. That’s a big part of why those laws have worked, and citizen enforcement was a “must have” provision for environmentalists to support the Great Lakes compact. The same should be true for ballast water regulation.
2. Supporting states, not preempting them: The Great Lakes compact provides minimum standards for states to use in managing water withdrawals, but expressly allows states to impose stricter standards or take other measures necessary to protect their unique water resources. This concept of “a floor, not a ceiling” on state protection also comes from the Clean Water Act and other federal environmental laws. We know that sometimes the minimum standards are not enough to protect state natural resources, and states should have the ability to go further and be more protective. Again, this concept was critically important in the Great Lakes compact negotiations, since states are justifiable reluctant to give up their ability to protect their resources.
3. Protecting the lakes from threats outside and within the region: During the compact negotiations, some industry representatives originally took the position that the compact should guard against diversions from outside the basin, but not regulate water use within the basin. Environmentalists rightfully rejected that approach, since harm can come from both in-basin and out-of-basin water uses. Now we are seeing a similar debate over ballast water pollution. The shippers and some of their allies may agree to regulate the discharge of ballast water from ocean going ships (‘salties’), but are opposing regulation of ships that operate exclusively with the Great Lakes (‘lakers’). Regulating salties is the top priority, but pollution from lakers must also be addressed. Without new controls, lakers can spread invasive species such as the fish disease Viral Hemorrhagic Septicemia (VHS) from one lake to another. Environmentalists didn’t allow the Great Lakes compact to go forward with a half solution, and nor should that be enough for invasive species.
Perhaps Congressional politics makes it too difficult for national environmental groups to negotiate a new federal law that’s as strong as the Great Lakes compact. If that’s the case, then let’s solve the problem with a Great Lakes invasive species compact. State leaders (including representatives of both the environmental and business communities) have shown that they can work together as a region to solve environmental problems. And state leaders seem far more committed to the foundational legal principles that make an environmental policy work. If Congress and national leaders can’t do it right, then let the states of the region do it together.