Active Cases, Concluded Cases, and Amicus Curiae


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Chesapeake Bay Clean Water Blueprint
2/4/2014

U.S. District Court for the Middle District of Pennsylvania
American Farm Bureau Federation et al v. EPA

UPDATE: The American Farm Bureau Federation and its partners filed an appeal to the ruling on January 27, 2014. On February 4, 2014, 21 states joined the American Farm Bureau Federation and their allies in the effort to derail Bay cleanup. The 21 state Attorneys General filed an amicus (friend of the court) brief supporting the American Farm Bureau Federation’s position. See press release

UPDATE: On September 13, 2013, Pennsylvania Federal Judge Sylvia Rambo issued a ruling upholding Bay clean-up efforts and rejecting the arguments of the Farm Bureau, the National Homebuilders Association, and other big agricultural interests. See press release

On December 29, 2010, EPA used its authority under the federal Clean Water Act to issue a Total Maximum Daily Load (TMDL) to limit excess nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed. This action followed 15 years of litigation, failed voluntary agreements, congressional actions, executive branch actions, and cooperative technical work, including a 2010 settlement agreement of CBF's lawsuit against EPA that set specific deadlines and several other conditions for the TMDL.

Less than two weeks after the Bay TMDL was finalized, the American Farm Bureau Federation and the Pennsylvania Farm Bureau together filed a complaint in federal court against EPA in an effort to stop the TMDL and the implementation plans from moving forward. The lawsuit challenges several key aspects used in the development of the Bay TMDL - EPA's authority, the science and information used, and the public participation process. The two initiating groups were eventually joined by several other major agriculture industry trade associations as well as the National Association of Home Builders.

In 2011, CBF along with Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District (WV), Midshore Riverkeeper Conservancy, and the National Wildlife Federation filed a joint motion to intervene in this case in support of EPA and the Bay TMDL. Several municipal wastewater groups also asked to intervene in support of EPA and the Bay TMDL.

On October 4, 2012, CBF and the other parties presented their arguments to federal Judge Sylvia Rambo in Harrisburg, Pennsylvania. A decision is still pending.

This matter is being handled by CBF Vice President for Litigation Jon Mueller and counsel for the Defenders of Wildlife, Southern Environmental Law Center.

MORE INFORMATION ABOUT THE CHESAPEAKE BAY CLEAN WATER BLUEPRINT

 

Sparrows Point
1/14/2014

UPDATE: (January 14, 2014) Maryland District Court Judge Frederick Motz vacated his earlier decision to limit testing for toxic chemicals in the waters off Sparrows Point, opening the door for a comprehensive offsite investigation. Read More

The Sparrows Point steel mill is located on the banks of the Patapsco River in Baltimore, Maryland. The original owner, Bethlehem Steel Corporation (BSC), operated on the roughly 2,300 acre site for more than 80 years, making iron and steel and building ships. Hazardous wastes were deposited on the site and in the adjacent waterways.

In the late 1990s, the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE) sued BSC for numerous hazardous waste violations. The case was settled in 1997 when the parties signed a consent decree that required BSC and any subsequent owner to correct the violations, perform the necessary studies to fully evaluate the site, and cleanup the pollution both on- and off-site. BSC declared bankruptcy in 2000 and ownership of the property has changed hands several times since. The Russian steel company Severstal took ownership from ArcelorMital in 2008 but sold the site in 2011 – RG Steel (a subsidiary of The Renco Group) took control of the mill at this time. RG Steel went on to file for bankruptcy a year later.

Today, more than 10 years and several owners later, very little clean-up of Sparrows Point has occurred. Environmental monitoring suggests that hazardous waste is leaving the site and contaminating the adjacent Patapsco River and Bear Creek.

U.S. District Court for the District of Maryland
Chesapeake Bay Foundation et al v. RG Steel Sparrows Point

 

Concerned with local water quality and human health in the areas surrounding the steel mill, CBF, Baltimore Harbor Waterkeeper, and several local residents joined together in 2009 and sent a notice of intent to sue to the owners of the steel facility as well as the agencies charged with oversight of environmental compliance on and around the property.

In 2010, after efforts to resolve the concerns without litigation failed, a citizen suit was filed in federal court against past and present owners ArcelorMital and Severstal. The lawsuit asked the court to order the steel companies to fully investigate off-site contamination and, if necessary, to remove and remediate the off-site contamination, to take emergency measures to more fully prevent pollution leaving the facility, and to obtain appropriate hazardous waste and erosion and sediment control permits.

Shortly after the suit was filed, attorneys for the steel companies asked the Court to dismiss the CBF citizen suit. On July 5, 2011, the Court dismissed some, but not all, of CBF's claims. This case was allowed to move forward on several grounds, including the current owner's failure to have the proper permits for the treatment, storage and disposal of hazardous waste and their failure to have an erosion and sediment control permit for one of two landfills on site.

The parties began discovery in this case, including formal interrogatories, depositions, and the production of expert reports. However, following the recent 2012 bankruptcy petition, this case was stayed by the Court.

 

U.S. District Court for the District of Maryland
RG Steel Sparrows Point v. EPA and MDE

Despite the fact that, under the terms of the 1997 consent decree, clean up of the steel mill site is the responsibility of any owner, Severstal believed that because the property had been sold as part of BSC's bankruptcy, subsequent owners were not legally obligated to investigate and remediate contamination that had migrated beyond the steel mill property. In July of 2010, Severstal filed a formal Petition for Dispute Resolution with the Court thus reactivating the original federal suit. CBF and its co-plaintiffs in the permitting case filed a motion to intervene due to their substantial interest in the case.

In September of 2010, Severstal and ArcelorMittal filed oppositions in an attempt to deny CBF and its allies the right to intervene. The steel companies also argued that the bankruptcy sale of the property in 2003 effectively released them from environmental liability for releases of hazardous waste that occurred prior to BSC's bankruptcy.

The Court issued an opinion on July 5, 2011 allowing CBF and the individual citizens to intervene in the dispute resolution case because their interests are affected by further implementation of the 1997 consent decree. The Court also decided that current owners are responsible for existing on-site releases of contamination from the steel facility and that they are not relieved of their obligation to conduct a Site Wide Investigation (SWI) that includes offshore sampling of current and past releases.

However, the Court also found that the bankruptcy sale of the steel mill by BSC cut off the obligation of any subsequent owner to remediate pollution released from the site prior to the date of sale, 2003. The Court further ordered the parties to try and reach an agreement on the scope of the SWI. CBF participated in negotiations with the owners of the steel mill, EPA, and MDE and ultimately objected to several aspects of the proposed "framework" for the offshore investigation portion of the SWI.

On March 15, 2012, over the objections of CBF, the Court formally approved the offsite investigation agreed upon by RG Steel, EPA, and MDE. As a result, on May 2, 2012, CBF appealed this decision to the U.S. Court of Appeals for the Fourth Circuit. Despite the automatic stay of both cases in the District Court, this appeal has been allowed to move forward. Written arguments will be submitted to the federal appeals courts throughout the rest of 2012.

U.S. Bankruptcy Court for the District of Delaware
In Re: RG Steel Sparrows Point

In May of 2012, RG Steel filed its notice of voluntary bankruptcy in federal court in Delaware. A few months later, the Sparrows Point steel mill went to auction. Environmental Liabilities Transfer (ELT) and CDC (representing a third party, Hilco) made the highest bid of $72 million. A draft bankruptcy sale order followed. CBF, EPA and MDE argued to the bankruptcy court that the sale order was deficient because, among other things, it failed to contain a provision obligating the new purchasers to fulfill the outstanding obligations under the consent decree and to perform the off-site investigation. CBF, EPA and MDE successfully negotiated with RG Steel for a provision in the sale order that obligated the buyers to perform all outstanding work required under the consent decree. In addition, $500,000 was set aside from the sale proceeds to fund the off-site investigation.

All Sparrows Point matters are being handled by CBF Vice President for Litigation Jon Mueller and Litigation Attorney Christine Tramontana, along with counsel for Blue Water Baltimore, Inc.

MORE INFORMATION ABOUT SPARROWS POINT

 

Maryland Land Use
8/5/2013

Circuit Court for Frederick County
Friends of Frederick County et al v. Board of County Commissioners

 

In 2010, the Frederick Board of County Commissioners adopted a new Comprehensive
Plan and Zoning map after two years of studies, reviews and public input. Shortly thereafter, a new Board took office and quickly amended it. CBF and other groups saw several key problems with the new Board's actions – it did not follow proper procedure and the changes violated Maryland land use law enacted to help reduce pollution entering the Chesapeake Bay.

In 2011, CBF along with the other groups filed a complaint with the Circuit Court asking the court to declare the County's 2011 Comprehensive Plan review unlawful. However, because a final vote had not yet occurred, the Court found that the matter was not ripe for a decision and dismissed the case.

After the first case had been dismissed, CBF continued to monitor the map amendment process until a final decision to amend the Comprehensive Plan had been made. In December of 2012, CBF and its allies again filed a complaint with the Frederick County Circuit Court asking the court to declare the 2012 review unlawful and in conflict with state initiatives and policies.

This case is being handled by outside counsel along with the support of the CBF Litigation Department and Maryland Office.

 

Dobbins Island in the Magothy
8/5/2013

Maryland Court of Special Appeals
Chesapeake Bay Foundation et al v. David Clickner

In 2005, David Clickner sought variances to construct a large home on Dobbins Island in the Magothy River and was denied by Anne Arundel County. Late in 2006, he sought variances for a pier, driveway, stormwater controls, and a septic field. CBF objected to the second request on several grounds, including the fact that the pier and stormwater discharge would pass through thriving, but fragile, beds of underwater grasses. Further, the stormwater controls and septic field would be constructed in the Critical Area buffer. The County Administrative Hearing Officer granted the variances for the pier and other additions with some limitations.

In 2007, CBF appealed the decision of the Hearing Officer to the County Board of Appeals. Prior to a hearing on the merits of the case, both the County and the property owners asked for CBF's appeal to be dismissed for lack of standing. After two nights of hearings were held to address the issue of standing, and despite the fact that CBF presented extensive evidence regarding its special interests in the Magothy River and the island, the Board dismissed our appeal and upheld the decision to grant the variances.

CBF then appealed the Board's decision to the Circuit Court for Anne Arundel County where the Board's decision was simply affirmed. CBF's battle continued with an appeal to the Court of Special Appeals and on April 30, 2010 the lower court's decision was reversed. The appeals court found that the Board had used "faulty logic" in determining whether or not CBF had administrative standing and sent the matter back to the County Board of Appeals for further proceedings.

After several nights of hearings during the summer of 2011 the Board of Appeals decided to grant all of the variances requested. An appeal is again underway before the Circuit Court.

This matter is being handled by CBF Vice President for Litigation Jon Mueller.

Little Island in the Magothy
8/5/2013

Maryland Court of Special Appeals
Margaret McHale et al v. DCW Dutchship Island LLC et al

 

In 2001, local homebuilder Daryl Wagner, operating as DCW Dutchship Island, LLC, tore down a pre-existing cottage and built a large home, swimming pool, and lighthouse on Little Island in the Magothy River without having any of the required building permits, variances, or buffer map amendments needed to carry out his project. Maryland law requires that, in addition to general building permits, citizens apply for and receive variances to construct in any area within 1,000 feet of tidally influenced waters, otherwise known as the Critical Area. The entire island is within the Critical Area. The majority of the island, including the new house, is also in the "buffer," an area of land in which construction is prohibited without a variance. 

After the new construction was discovered by county and state inspectors, Mr. Wagner applied for the necessary variances and modifications to the buffer map on a retroactive basis. Anne Arundel County Planning and Zoning officials approved the variances and buffer map modifications. CBF appealed those decisions to the Anne Arundel County Board of Appeals.

Hearings were held before the Board over a nine-month period in 2006. The requests for variances and buffer map modifications were addressed separately. Early in the case, the Board erroneously ruled that CBF lacked standing to challenge the variance requests and dismissed us. However, the Board did allow CBF to participate in the buffer map modification part of the hearings.

The majority of the Board followed the lead of the Planning and Zoning officials and voted to grant the variances and buffer map modifications. By January 2007 the Board had issued its written decision which merely adopted the statements of the County's witnesses— including the theory that the island had been "missed" when the buffer maps were created in 1994 and thus, map modification to reflect pre-existing "non functioning" areas of the buffer was appropriate.

CBF appealed the Board's decisions to the Circuit Court for Anne Arundel County. The variance and buffer map modification issues were consolidated into one appeal. Here again, CBF's legal standing was attacked. In the end, the Circuit Court found that CBF had judicial standing to maintain the appeal but nonetheless upheld the full decision of the Board to grant the variances and allow the house to stand.

Another appeal continued to the Court of Special Appeals and finally, after a lengthy wait, the higher court affirmed the Circuit Court's decision in April of 2013.

This matter is being handled by CBF Vice President for Litigation Jon Mueller.

 

TriCity Wetlands Permit
8/5/2013

Court of Appeals of Virginia
Chesapeake Bay Foundation v. Commonwealth of Virginia

In December 2003, CBF and others appealed the issuance of a state issued Water Protection Permit to Tri-City Properties to the Circuit Court of the City of Richmond. The permit allowed for the destruction of 181 acres of protected, nontidal wetlands in Chesapeake, Virginia near the Stumpy Lake Nature Preserve.

Since the first filing in 2003, this case has been through the Virginia Courts several times. Standing – or the right of CBF to bring a lawsuit on behalf of itself and its members – has been challenged by the Commonwealth several times. Despite some setbacks, the case has inched along.

Today it is before the Virginia Court of Appeals where questions tied to an absent opinion and other missing information from the lower court have been raised. The Commonwealth has used these twists to their advantage, once again asking the court to dismiss the case. A decision is expected from the appeals court during 2013.

This matter is being handled by outside counsel on a pro bono basis with assistance from CBF's Virginia office and the Litigation Department.

 


CBF Concluded Litigation Cases RSS Feed
Chesapeake 2000 Agreement Lawsuit
8/5/2013

C. Bernard Fowler et al v. EPA et al
U.S. District Court for the District of Columbia

In January 2009, CBF, along with several signatories to the Chesapeake Bay Agreements, a fishing association, and two watermen's associations, filed a complaint in the U.S. District Court for the District of Columbia against the U.S. Environmental Protection Agency (EPA) for failure to comply with the Clean Water Act and the terms of the Chesapeake Bay Agreements. Settlement discussions were begun with the new Administration soon after the suit was filed.

Significantly, on May 12, 2009, President Obama issued an Executive Order (EO) instructing six federal agencies including the EPA Administrator to exercise leadership and develop a federal strategy to restore the Bay by the following May. With the EO as a backdrop, we agreed to stay the litigation until June 2010 and continue negotiations. Municipal stormwater and wastewater treatment groups intervened to oppose our suit but were not allowed to participate in the negotiations.

After 15 months of negotiation, the parties were able to reach an agreement and a settlement was finalized on May 11, 2010. The historic settlement agreement provides a legally binding, enforceable commitment that EPA will take specific actions under its current authority to ensure that pollution to rivers, streams, and the Chesapeake Bay is reduced sufficiently to remove the Bay from the federal "impaired waters" list.

The agreement is comprehensive, and includes accountability and consequences for failure. In addition, it specifically incorporates the TMDL process, including a requirement that state implementation plans meet specific criteria and that EPA will consider a suite of consequences should the states fail to act or meet their milestones. Unlike the TMDL or EO, under this agreement CBF can go back to court if the federal government fails to comply with any of the terms of the agreement.

This matter was handled by CBF Vice President of Litigation Jon Mueller and staff attorney Amy McDonnell.

Mercury Deadline Suit
8/5/2013

American Nurses Assoc. et al v. EPA et al
U.S. District Court for the District of Columbia

As required by the Clean Air Act, the U.S. Environmental Protection Agency (EPA) found in 2000 that regulating hazardous air pollutants emitted from coal- and oil-fired power plants, was not only appropriate but necessary. Mercury emissions were determined to be of the greatest concern. EPA was required to create national emissions standards for mercury and other air pollutants by the end of 2002.

After an administration change in the fall of 2000 this decision was reversed and new rules were created — the Mercury Delisting Rule and the Clean Air Mercury Rule. The rules were not protective of human health or the environment. CBF, other environmental groups, and many states challenged these rules and both were eventually vacated by a federal appeals court in 2008. However, the 2008 ruling did not extinguish the original 2000 findings.

The Clean Air Act required EPA to develop regulations for hazardous air pollutants emitted by coal and oil fired power plants. EPA had failed to undertake such a rulemaking in the time required by Congress. Late in 2008, CBF and several other environmental and public interest groups filed a lawsuit asking a federal court to require EPA to create such emission standards.

Nearly a year later an agreement to create the standards was reached. A formal consent decree between the parties was accepted by the Court in April of 2010. The EPA will now begin the process of creating rules governing emissions of hazardous air pollutants, such as mercury, from power plants.

This matter was handled by CBF Vice President of Litigation Jon Mueller along with counsel for the other environmental groups.

Challenges to EPA Mercury Rules (Delisting Rule and CAMR)
8/5/2013

State of New Jersey et al v. EPA
U.S. Court of Appeals for the D.C. Circuit

In 2000, the U.S. Environmental Protection Agency (EPA) determined that mercury emissions from coal-fired power plants should be controlled to the maximum extent possible and began to develop standards to regulate these emissions. However, after the change in administration in the fall of 2000, EPA reversed its decision without following the Clean Air Act requirements for making such a reversal. EPA also passed regulations that allowed utilities to trade the right to pollute. Given that mercury is a heavy metal that falls to the earth relatively close to the plant, such a program would have led to contamination "hot spots."

In the spring of 2005, CBF, several environmental groups, the National Congress of American Indians, and numerous states filed petitions in the U.S. Court of Appeals for the D.C. Circuit challenging the two rules issued by EPA. Fifty CBF board members and staff personally participated in the challenge by signing declarations and providing portions of their hair for mercury analysis. This information was used in support of our standing to participate in the case.

On February 8, 2008, the three member panel of the Court of Appeals held that EPA's actions violated the Clean Air Act. EPA and representatives for the industry asked for a rehearing but were turned down by the Court in May of 2008. In February of 2009 a request for review by the U.S. Supreme Court was also denied.

Fortunately, many states like Maryland and Pennsylvania already have strict rules in place, so the federal decision will not affect them. However, states like Virginia that have hybrid rules will have to amend their rules to comply with the Court's decision.

This matter was handled by CBF Vice President of Litigation Jon Mueller along with counsel for the other environmental groups.

Blue Plains Sewage Treatment Plant
8/5/2013

D.C. WASA v. EPA et al
U.S. Court of Appeals for the D.C. Circuit

In April 2007, the U.S. Environmental Protection Agency (EPA) issued a pollution discharge permit for the District of Columbia's Blue Plains sewage plant, the largest single source of nitrogen and phosphorous pollution in the Chesapeake Bay watershed. The Blue Plains plant discharges an average of 6.3 million pounds of nitrogen each year into the Potomac River, a tributary to the Bay.

While CBF approved of the limits placed on the amount of nitrogen and other nutrients that could be discharged by the plant, we objected to the fact that the permit did not include a compliance schedule or deadline for the plant to construct the necessary equipment to meet the limits — even though local D.C. and federal laws require that the permit contain a compliance schedule.

Consequently, in May of 2007, CBF filed an administrative appeal of the permit with EPA's Environmental Appeals Board. In March of 2008, the Board issued its opinion upholding the permit limits and agreeing with CBF that the permit was invalid for failing to contain a compliance schedule. Blue Plains then requested reconsideration of the decision, but the Board declined. Blue Plains appealed the Board's decisions to the U.S. Court of Appeals for the District of Columbia. However, because the permit was not final and was being redrafted by EPA to comply with the Board's decision, the appeal was dismissed early in 2009. A revised permit consistent with our objectives has been drafted.

This matter was handled by CBF Vice President of Litigation Jon Mueller and staff attorney Amy McDonnell.

Marcellus Shale Project
8/5/2013

State level

On April 1, 2009 Pennsylvania's Department of Environmental Protection (DEP) eliminated local conservation districts from the review process of Erosion and Sediment Control plans and permits and Stream and Wetlands Encroachment permits in relation to the natural gas industry. Conservation districts are traditionally experts in erosion control and stream protection and their expertise in this area is invaluable to the protection of the environment.

Late that summer and in response to permits issued to several natural gas companies under the new expedited permitting process, CBF filed three appeals with the Pennsylvania Environmental Hearing Board (EHB) challenging erosion and sediment control permits issued to Ultra Resources Inc. and Fortuna Energy Inc. As a result of the legal challenges, DEP revoked the three erosion and sedimentation control general permits. One of the companies, however, filed a separate appeal of the decision to revoke their permit.

In July of 2011, CBF and DEP reached an agreement that resolved all of the questions presented in the appeals. The formal settlement agreement, approved by the EHB, requires DEP to amend their permit review process to prohibit an expedited review process to any applicant seeking a permit for projects located in or with the potential to discharge to waters that have been designated as high quality or exceptional value and for projects in which the well pad will be constructed in or on a floodplain.

Federal level

On April 4, 2011, CBF along with several other groups filed a formal citizen petition with the federal government requesting the completion of a programmatic environmental impact statement (PEIS) regarding the cumulative impacts of drilling in the Marcellus Shale formation within the Chesapeake Bay watershed and the promulgation of necessary regulations based upon the outcome of the study. The petition was filed with the Council on Environmental Quality (CEQ) requesting that they provide oversight and guidance to several federal agencies in conducting the comprehensive study. No formal response from CEQ has been provided.

In February of 2012, CBF also filed an amicus curiae brief with the federal court in Brooklyn in support of the State of New York's position that federal coordination is required under the National Environmental Policy Act of 1969 regarding the Delaware River Basin Commission's authorization of unconventional natural gas development including hydraulic fracturing in counties that are located within the Delaware River Basin and the Chesapeake Bay watershed. While the Court noted that CBF's amicus brief was informative, it dismissed the case for lack of subject matter jurisdiction in September of 2012.

These matters were jointly handled by CBF's Litigation Department and Pennsylvania Office, along with assistance from law students at Drexel University School of Law.

Queen Anne County Agricultural Rezoning
8/5/2013

Carol Woodson Bilek et al. v. County Commissioners of Queen Anne's County et al.
Circuit Court for Queen Anne's County

In 2010, the Queen Anne's County Board of County Commissioners (BOCC) approved a new comprehensive land use plan including new zoning maps. During this process and into 2011, a list of applications made by landowners to the County requesting re-zoning, or map amendments, were also considered – this was done following standard procedure involving the Planning Commission and public hearings.

After a full review, the Planning Commission concluded that four of the proposed map amendments were inconsistent with the new 2010 Comprehensive Plan. Despite the Planning Commission's findings, as well as public comments which further emphasized the inconsistencies with newly adopted Comprehensive Plan, the County Commissioners adopted the map amendments on November 8, 2011. (County Ordinance No. 11-03, An Omnibus Act Concerning various Comprehensive Rezonings in Queen Anne's County.) In total, this amounted to a rezoning of approximately 600 acres from agricultural to commercial, light industrial, residential, or yet to be determined zoning classifications.

CBF, along with many local property owners and several local citizen organizations, saw that this decision violated Article 66B of the Maryland Code and legislation passed in 2009 that requires consistency between county land use decisions and the county's comprehensive plan. As a result, CBF and the other parties filed a lawsuit in the Queen Anne's County Circuit Court asking the court to declare the rezoning process illegal and invalidate County Ordinance No. 11-03.

On August 7, 2012, the Circuit Court found that the largest of the four parcels – a 216-acre property that lies at the headwaters of the Wye River – was not rezoned legally and declared Ordinance No. 11-3 invalid with respect to this one property. Regarding the remaining three properties in question, the Court found that the BOCC did not articulate enough facts to meet "consistency requirements" and essentially moved the case to the next step - a trial at which the BOCC will have the opportunity to present the factors they considered in rezoning the other properties for further examination.

King William Resevoir (Virginia)
8/3/2013

This matter concerns both the federal and state permitting of a proposed reservoir in King William County, Virginia. If built, the reservoir project would have been the largest permitted wetlands destruction in the Mid-Atlantic region — over 430 acres.

Alliance to Save the Mattaponi et al v. U.S. Army Corps of Engineers et al
U.S. District Court for the District of Columbia

In 2001, after more than 10 years of studies and research, the Norfolk District of the U.S. Army Corps of Engineers recommended denial of a Clean Water Act permit for the project. However, then-Governor James Gilmore requested the decision be reconsidered by the Corps' North Atlantic Division. In 2005, the Division decided to issue the permit. CBF, along with several co-plaintiffs, appealed the issuance of the permit to the U.S. District Court for the District of Columbia. Based on an additional claim made by the Mattaponi Indian Tribe in the same case, CBF eventually added a second claim to the complaint against the U.S. Environmental Protection Agency (EPA) for failing to exercise its powers and stop the Army Corps from issuing the permit.

In 2009, the U.S. District Court reversed the decision to issue the permit and sent it back to the Army Corps for further consideration. The Court also found that EPA had not sufficiently detailed its reasons for not denying the permit. The full decision was appealed to the U.S. Court of Appeals for the D.C. Circuit in June of 2009 by the federal government, but was shortly dismissed based on agreement of all the parties. As a result, the U.S. Army Corps suspended the permit and ordered Newport News to provide additional information supporting the permit. The project was officially terminated in October 2009 upon a decision of the City of Newport News to abandon the project.

This matter was handled by CBF Vice President of Litigation Jon Mueller along with counsel from the Southern Environmental Law Center. The University of Virginia's Environmental Law Clinic has also provided support.

Chesapeake Bay Foundation Inc. v. Commonwealth of Virginia
Virginia Court of Appeals

Virginia's Department of Environmental Quality issued a permit in 1997 to the City of Newport News to allow for the construction and operation of the reservoir. It gave the city 10 years to complete the project. However, by 2006 the reservoir project had not yet begun and Newport News sought an extension of time from the Virginia State Water Control Board. The Board initially denied the extension and, at the request of Newport News, decided to reconsider three months later. In an unprecedented decision, the Board granted the extension in December of 2006. As CBF believed this decision was contrary to legally required procedures, we asked for a formal hearing before the Board but were denied.

CBF then appealed the Board's decision to grant the permit extension to the Circuit Court for the City of Richmond. Virginia and Newport News argued that CBF lacked standing on the grounds that the extension could not cause CBF any harm. The Circuit agreed with these arguments and dismissed CBF for lack of standing in September of 2007. We appealed that decision to the Virginia Court of Appeals. In November of 2008, the Court of Appeals reversed the Circuit Court's decision, finding that CBF did in fact have both individual standing and representational standing. Virginia, in turn, appealed the 2008 decision to the Virginia Supreme Court. However, based on the suspension of the federal permit and the subsequent abandonment of the project by Newport News, the state appeal was dismissed as moot.

This matter was handled by CBF's Virginia Office and Vice President of Litigation Jon Mueller.

 

Merck Permit Challenge
8/3/2013

Circuit Court for the City of Richmond
Chesapeake Bay Foundation v. Commonwealth of Virginia

In April of 2009, the Virginia Water Control Board approved a recommendation from the Department of Environmental Quality to raise the allotted limit on the amount of nutrients Merck's Stonewall Plant can discharge into the Shenandoah River, one of the many tributaries of the Chesapeake Bay. Currently, the pharmaceutical manufacturer is permitted to discharge 14,619 pounds of nitrogen and 1,096 pounds of phosphorous from its wastewater-treatment facility each year into the river.

The new allocations will allow the plant to discharge 43,835 pounds of nitrogen and 4,384 pounds of phosphorous per year. Although the Board directed Merck to identify companies that are no longer releasing nutrients, or are discharging fewer nutrients to the Shenandoah River than they are permitted to release there is no requirement that Merck identify such offsets prior to being granted a permit amendment. Further, there is no guarantee that the offsetting loads will continue into the future. For example, Merck only has to purchase credits if such credits are available; if they are not available then Merck is released from its obligation to acquire the credits and will still be permitted to discharge the higher level of nutrients.

In May 2009, CBF and the Virginia State Waterman's Association filed a notice of appeal with the Circuit Court for the City of Richmond. However, after the publication of the Bay TMDL towards the end of 2010, the parties began negotiations in an attempt to reach a settlement. This was met by success in April of 2011 with the lodging of a consent decree in the state court. Under the settlement approved by Richmond Circuit Judge Melvin R. Hughes Jr., Merck's nitrogen and phosphorus discharges will conform to EPA's guidelines for pollution flowing into the Bay.

This matter was handled by CBF Vice President of Litigation Jon Mueller and Virginia Office attorney Peggy Sanner.

Moreland
10/21/2012

Maryland Court of Special Appeals
Critical Area Commission et al v. Moreland LLC

In 2003, Moreland, LLC, a Maryland company, purchased two lots along Warehouse Creek in Anne Arundel County with the intention of building residential homes on them. Moreland applied for variances that would allow the construction of the two single-family homes with accompanying wells and septic systems within the state designated Critical Area. The Administrative Hearing Officer denied this request. Moreland then appealed the AHO's decision to the Anne Arundel County Board of Appeals. The Board also denied the requests. The South River Federation and local residents participated in the variance hearings before the Board and presented evidence supporting a denial.

In February of 2007, Moreland appealed the Board's denial to the Circuit Court for Anne Arundel County. Based on the legalities of the appeal and the threat to water quality, CBF's Litigation Department agreed to represent South River Federation in this appeal. After hearing written and oral arguments, the Circuit Court ruled in Moreland's favor and overturned the Board's denial. CBF, on behalf of South River Federation, appealed the Circuit Court's decision to the Maryland Court of Special Appeals where the lower court's conclusion was upheld.

By 2010, CBF had appealed this decision to the Court of Appeals. Finally on January 28, 2011 the Court filed its written opinion affirming the Board's decisions to deny the variances.

This matter was handled by CBF Vice President of Litigation Jon Mueller.

Pennsylvania and West Virginia Water Permits
10/21/2012

In 2008 and into 2009, numerous municipalities in Pennsylvania and West Virginia filed administrative and judicial appeals challenging their permits to discharge wastewater into tributaries of the Susquehanna and Potomac Rivers. These challenges claim that the nitrogen and phosphorous limits imposed by the permits are invalid because they are based upon wasteload allocations generated as a result of Chesapeake Bay water quality standards. These allocations were adopted by state agencies as part of their tributary strategies created following the Chesapeake 2000 Agreement. The municipalities have argued that they should not be bound by the tributary strategies as the strategies have not been approved by their state legislatures.

CBF chose to get involved in these cases, supporting the state agencies that issued the more stringent permits. The higher limits translate into fewer nutrients going into the Chesapeake Bay. Many of the municipalities will have to install the needed upgrades to meet the new limits if they remain in place.

These matters were handled by CBF staff attorney Amy McDonnell.

Elizabeth Wilson Wastewater Treatment Plant (Maryland)
9/13/2010

Early in 2007, the Maryland Department of the Environment (MDE) issued a discharge permit that allowed for the construction of an individual wastewater treatment plant on a private residence located on Bungay Creek in Kent County. The Creek flows into West Langford Creek, which flows into the Chester River and ultimately the Bay. The land on which the treatment plant is proposed did not pass a percolation test, thus a septic system could not be installed. Without some sort of wastewater system, a house could not be built on the property. The owners sought the discharge permit to circumvent this restriction. One of the permit's requirements is that the owners preserve and maintain five acres of land to "offset" wastewater discharges to the Creek. At the time the permit was granted, Maryland did not have a formal "offset" policy and there were no rules in place to guide the agency in quantifying land for this purpose.

Because CBF believed that such a permit, if left unchallenged, would only lead to more construction in the sensitive Critical Area and further harm to water quality, we requested reconsideration of the permit. However, in June 2008 MDE decided to go forward with finalizing the permit. Subsequently, CBF appealed the final permit to the Maryland Circuit Court for Kent County. On March 20, 2009, the Circuit Court upheld the permit.

The permit decision was appealed to the Court of Special Appeals, but the appeal was dismissed in September 2009 due to new law in effect. During the course of this case and largely as a result, the Maryland General Assembly passed legislation in 2009 that would prohibit the issuance of similar permits in the future.

Philip Morris Wastewater Permit (Virginia)
9/13/2010

In the summer of 2004, CBF sued the Virginia Department of Environmental Quality (DEQ) for failing to require lower nitrogen limits in Philip Morris' wastewater discharge permit. In January 2005, the Chesterfield County Circuit Court held that CBF could not bring such a case because it lacked standing - CBF would not suffer any harm due to the permit and CBF could not represent its members. CBF filed an appeal with the Virginia Court of Appeals, which overturned the Circuit Court decision in April 2006. The Commonwealth and Philip Morris appealed this decision to the Supreme Court of Virginia. CBF trustee, Tayloe Murphy, submitted an amicus curiae brief in support of CBF.

On April 20, 2007, in a unanimous decision, the Supreme Court of Virginia upheld the Court of Appeals' decision and ruled that a citizen group can sue both on its own behalf and on behalf of its members. Consistent with our argument, the Court held that the standard to be applied is the same as the federal standard under Article III of the United States Constitution. In our petition, we alleged that the permitted discharges have "and will continue to cause injury to CBF and its members who regularly use and enjoy the James River, a tributary of the Chesapeake Bay, for swimming, boating, kayaking, canoeing, sport fishing, and other educational and recreational pursuits." The court held that these facts alone alleged "actual and ongoing injury to the recreational interests of members of CBF sufficient to satisfy" federal law and created legally protected interests, not generalized grievances of the public. Further, the injuries alleged were traceable to the permitting decision because the discharges will excessively increase the amount of nutrients in the James River and lead to harmful algae blooms. This ruling does not only apply to challenges to wastewater permits issued under the state Clean Water Act but to all state statutes that contain a reference to the requirements of Article III of the United States Constitution.

While the lawsuit was pending, DEQ issued regulations requiring Philip Morris to reduce its nitrogen load by January 2008 and its phosphorous load by 2011. Recently, CBF, the State, and Philip Morris agreed to settle the lawsuit. Under a settlement agreement approved by the Circuit Court, Philip Morris will comply with the reduced nitrogen and phosphorous load limits effective immediately. The settlement concludes this matter in favor of CBF, the James River and the Bay.

The litigation was handled by CBF Vice President of Litigation and the Virginia staff attorney.

Town of Onancock (Virginia)
9/13/2010

In the summer of 2004, CBF sued the Virginia Water Control Board and the Department of Environmental Quality (DEQ) for failing to require nitrogen and phosphorous limits in the Town of Onancock's wastewater plant discharge permit. In April 2005, a hearing was held in the City of Richmond Circuit Court on our motion for summary judgment. The facts were not in dispute. Only legal issues were part of the discussion. Despite evidence to the contrary, in November 2005, the court held that CBF had not established that the Water Board had issued a flawed permit and dismissed the case.

However, largely in response to this suit and another brought by CBF concerning the Philip Morris plant outside of Richmond, DEQ has now set stricter limits for the Onancock plant and the town has agreed to upgrade its facility. Therefore, instead of appealing the decision, CBF and DEQ asked the Court to dismiss the case. The agreement between CBF and DEQ provides that the circuit court decision will have no effect on the current law.

Blackwater Resort Development
9/13/2010

The developer of Blackwater Resort Communities planned to build 3,200 single-family and multi-family homes, a 100-room hotel and conference center, a retail center, and a golf course on more than 1,000 acres of forest and farmland along Egypt Road, just south of the City of Cambridge, in Dorchester County. This land had been annexed by the City of Cambridge from the County in June 2004.  Because much of this project was to be built within Maryland's Critical Area, the developer sought 313 acres of "growth allocation" from both Dorchester County and the City of Cambridge.

The Dorchester County Council voted to grant the developer the growth allocation. CBF, along with several local farmers, filed a Petition for Judicial Review of Dorchester County Council's decision in the Circuit Court for Dorchester County. CBF and its farming partners also filed a request for administrative review of this decision before the Dorchester County Board of Appeals. A similar suit and administrative challenge were also filed against the City of Cambridge for its grant of growth allocation to the developer.

Later that year, the City of Cambridge Planning and Zoning Department approved the Design Master Development plan for the project. CBF objected to this decision, as we believed that the changes to the plan were so substantial that they warranted review as a preliminary plan. To preserve our objection, a petition for review was filed with the Cambridge Board of Appeals. Despite CBF's appeal and City law to the contrary, City Planning and Zoning went forward with approval of the project's Final Master Development Plan. We petitioned for review of that decision with the Board of Appeals. The City later approved the Final Master Development Plan. CBF also sought judicial review of this decision in the Circuit Court. All of the administrative appeals were dismissed by the respective Boards of Appeal for lack of jurisdiction (they believed the Circuit Court could only decide these issues). To preserve our claims, we filed appeals of those decisions to the County Circuit Court. Thus, all together, CBF had seven cases pending in Circuit Court.

CBF was also actively involved in opposition to the City's application to the Critical Area Commission (CAC) for approval of the growth allocation award. We retained two outside consulting firms to evaluate the project and retained five different expert witnesses to provide written and oral testimony to the CAC panel.

On October 4, 2006, the Critical Area Commission (CAC) rendered a first ever decision to deny the award of growth allocation to the City and the developer. The developer and the county filed suit against the CAC. Subsequently, the developer agreed to sell over 700 acres of the site to the State of Maryland. The State also agreed to restore the area from farm fields to buffer areas. The Litigation Department participated in the numerous negotiations that lead up to the final Memorandum of Understanding signed by the developer and the state. The sale was approved by the General Assembly in 2007. All of the judicial actions have been dismissed.

EPA Petition (Federal Case)
9/13/2010

In December 2003, CBF sent a petition to the U.S. Environmental Protection Agency asking it to address problems with the Clean Water Act in the Chesapeake Bay region. Wastewater treatment plants were not being required to meet specific numeric limits for nitrogen and phosphorous--the primary causes of dead zones throughout the Bay.

When CBF had not received a response from EPA after a year, it filed suit in D.C. District Court to require EPA to respond to the petition. EPA's 61-page response, received June 13, 2005, declined to write rules requiring numeric nutrient limits in treatment plant permits, but it did do two things that essentially complied with CBF's petition:

  1. EPA entered into an agreement with all six of the Bay states requiring them to place numeric nutrient limits in wastewater treatment plant permits once Maryland's water quality standards became final. Those standards became final August 29, 2005.
  2. EPA agreed that it would no longer waive reviews of permit applications for significant dischargers to Bay waters. This means that EPA will review every significant wastewater discharge permit issued in the Bay region.

In light of this agreement and EPA's response to its petition, CBF agreed to dismiss our suit. However, CBF will be reviewing all significant discharge permits issued in the future by the Bay states, to ensure that they comply with the law and the new agreement.

Massachusetts v. EPA
9/13/2010

On April 2, 2007, the U.S. Supreme Court issued an opinion on Massachusetts v. U.S. EPA. The court held that EPA could regulate greenhouse gas emissions like carbon dioxide and nitrogen oxides. Several states sued EPA to force it to regulate automobile emissions that contribute to global warming. EPA argued that carbon dioxide, a primary pollutant from car exhaust, was not subject to regulation under the Clean Air Act. The government also argued that the states did not have "standing" to challenge EPA's decision because they could not prove harm to state interests due to EPA's decision.

The Supreme Court found that Massachusetts had standing as its interests in protecting coastal lands were directly at risk by global warming and sea level rise. The Court also determined that given the potential adverse impacts associated with increased green house gas emissions, carbon dioxide was a pollutant subject to regulation by EPA.

Climate change has become a significant issue nationwide and could be a critical factor in Bay health. Experts believe that sea level rise and increasing water temperature could devastate underwater grasses and thereby reduce crab, fish, and oyster populations in the Bay.

Although the 5-4 decision was a narrow win, CBF applauds Massachusetts and the other states for tackling a novel question and prevailing.


CBF Amicus Curiae Briefs RSS Feed
Precon Development (Federal Case)
1/6/2012

Precon Development is the developer of a 658 acre tract planned unit development known as Edinburgh that is located in Chesapeake, Virginia. In 2006, Precon decided to proceed with the development of 10 residential building lots in Edinburgh and filed a request with the U.S. Army Corps of Engineers for a jurisdictional determination and an application for a permit, if necessary, to destroy wetlands located within the site. The Corps' determined that, under the Clean Water Act, the wetlands were waters of the United States under their jurisdiction and denied a permit to impact the wetlands.

Precon appealed the determinations to the U.S. District Court for the Eastern District of Virginia. The district court granted summary judgment to the Corps on September 4, 2009 and upheld both its jurisdictional determination and its permit denial. An appeal to the U.S. Court of Appeals for the Fourth Circuit followed where Precon challenged only the Corps' jurisdictional determination. Because of our long history of involvement with the Clean Water Act and the protection of our Nation's waters, including those in Virginia, CBF chose to get involved in this case and submitted an amicus curiae brief to the Fourth Circuit in support of the Corps' decision.

In January of 2011 the Fourth Circuit vacated the district court's decision and remanded the case back to the Corps for reconsideration of its determinations. The appeals court found the administrative record inadequate to support the Corps' conclusion that it had jurisdiction over Precon's wetlands.

Duke Energy (Federal Case)
1/6/2012

On April 2, 2007, the United States Supreme Court issued an opinion in Environmental Defense v. Duke Energy, and clarified the Clean Air Act's New Source Review provisions concerning the requirements for permitting coal-fired electric utilities that emit thousands of tons of pollutants into our air and ultimately into the Chesapeake Bay. CBF, while not a party to the case, submitted an amicus curiae brief supporting the position of the environmental petitioners and, ultimately, the U. S. Environmental Protection Agency (EPA). CBF provided detailed information to the court on how air pollution harms the Bay.

The New Source Review provisions require operators of large stationary sources of air pollution, such as coal-fired power plants, to get a permit and install the best available control technologies when they make a "modification" or structural change in the plant that increases pollution. In the Duke case, and several other similar pending cases brought by the U. S. Department of Justice on behalf of EPA, one of the pollutants sought to be controlled was nitrogen oxides, a pollutant harmful to the Bay. The court was asked to decide how to determine if a modernization project increased the amount of pollution emitted, and ultimately if the modifications triggered the requirement to install pollution controls. Duke Energy argued that the proper test was an hourly rate of emissions. The environmental petitioners argued that the proper test was an annual rate.

The Supreme Court overturned the ruling by the lower appeals court that construed EPA's regulations to require a permit only when a modernization project increases the maximum hourly rate at which a source is capable of emitting. The Court ruled that EPA may also consider an increase in the annual rate of pollution.

This was the first time in decades that the Supreme Court took a case at the behest of an environmental advocacy organization despite opposition by the federal government. This case serves as an example that an advocacy group's decision to intervene to support strict governmental enforcement of environmental regulation can have a significant impact on pollution control. It is for this reason that CBF is committed to and will continue to take on and join these types of cases where it suits our overall mission.

Supreme Court Wetlands Case (Federal Case)
1/6/2012

In January 2006, CBF filed an amicus curiae brief with the United States Supreme Court supporting the U. S. Army Corps of Engineers' jurisdiction over non-tidal wetlands and headwater streams in two cases: U.S. v. Carabell and U.S. v. Rapanos. The court's decision had the potential to significantly affect federal Clean Water Act jurisdiction over permitting construction in these kinds of wetlands. CBF's brief focused on how the loss of such jurisdiction could severely impact the Chesapeake Bay and its tributaries.

On June 19, 2006, the court issued a split decision with some justices voting to severely limit Corps jurisdiction and others voting for continued federal jurisdiction over permitting. The court described several different standards for how Corps jurisdiction should be determined but no clear standard was provided.

Ultimately, the cases were sent back to the trial court for development of additional facts. Given the split in reasoning, the Supreme Court decision will likely create confusion and add further burden to the Corps and states that implement the Clean Water Act. In an attempt to explain the decision and its potential impact on Bay resources, CBF Vice President of Litigation Jon Mueller submitted an article to the Bureau of National Affairs that was published in March 2007.

In June of 2007, the U.S. Environmental Protection Agency and the Corps announced agency guidance to ensure that all actions being conducted under the Clean Water Act are consistent with the Rapanos decision. CBF staff sttorney Amy McDonnell submitted comments on behalf of CBF objecting to the guidance and urging that the Act's definition of "waters of the United States" be amended to resolve the confusion caused by the Supreme Court decision.

Mirant Ash (Maryland)
1/6/2012

On April 2, 2008, five individual Maryland citizens, along with the Environmental Integrity Project ("EIP"), and the Potomac Riverkeeper ("PRK") (collectively "Petitioners") provided GenOn Mid-Atlantic, LLC, GenOn Maryland Ash Management, LLC (collectively "Respondent"), and MDE with notice of their intent to sue Respondent in federal court for violating Maryland's water pollution control laws and regulations. In response to Petitioners' notice of intent to sue, MDE filed suit against Respondent in circuit court on May 8, 2008, seeking injunctive relief and civil penalties, and alleging many of the same violations that Petitioners claimed in their notice.

On August 21, 2008, Petitioners moved to intervene in MDE's suit, both permissively and as a matter of right. The circuit court denied Petitioners' motion on September 23, 2008. Petitioners appealed to the Court of Special Appeals, which affirmed the circuit court's decision. This appeal followed.

Patuxent Riverkeeper (Maryland)
1/6/2012

During the 2009 Session of the Maryland General Assembly, several statutes were amended to allow interested parties the ability to challenge certain environmental agency decisions. Permits issued by Maryland Department of the Environment (MDE), for example, became subject to judicial review at the request of any person that (1) meets the threshold standing requirements under federal law and (2) takes part in the public participation process unless such opportunity is not provided. Prior to this change, Maryland law set the bar low for standing to challenge the merits of permitting environmental harm. The new laws went into effect on January 1, 2010.

In 2007, a local builder applied to MDE for a permit to develop the Woodmore Towne Center, an approximately 245 acre residential and commercial development situated in the Patuxent River watershed. In March of 2010, MDE issued a permit granting authorization to build the Towne Center.

On April 16, 2010 the Patuxent Riverkeeper sought judicial review of MDE's decision to issue the permit in the Circuit Court for Prince George's County. Both the developer and MDE moved to dismiss the case for lack of standing. Despite the new law that allowed for citizen standing in this case, the Circuit Court dismissed the Riverkeeper for lack of standing. An appeal to the Court of Appeals followed.

Because this case presents a question of first impression in Maryland, and because it concerns an area of law that addresses citizen participation in the permitting process, CBF chose to get involved. CBF and the Riverkeeper Alliance joined forces in support of the new laws and submitted an amicus curiae brief to the Court of Appeals in April of 2011.

Arrow Cove (Maryland)
1/6/2012

In February of 2007, the Circuit Court for Anne Arundel County upheld a decision of the County Board of Appeals granting several Critical Area variances to a developer proposing to build on land located on steep slopes along Saltworks Creek, a tributary to the Severn River. CBF recently constructed an oyster reef at the mouth of the Creek and development of the adjacent land carries with it an obvious risk to the health of the creek and its inhabitants. The property at stake is also within the Resource Conservation Area of the Critical Area. Development in Resource Conservation Areas is subject to the most stringent restrictions. Maryland law dictates that these areas must be conserved and protected.

Local residents concerned that the law was not being properly interpreted in this case and that the environment would suffer harm, appealed the Circuit Court';s decision to the Maryland Court of Special Appeals. CBF filed an amicus curiae brief in support of the appeal, arguing that the Circuit Court failed to satisfy legally required burdens in its decision and failed to properly evaluate the area where the proposed development would be built. In January of 2008, the Court of Special Appeals upheld the Board's decision to grant the variances. The citizens appealed, this time to the Maryland Court of Appeals, and CBF again submitted an amicus curiae brief.

Four Seasons
1/6/2012

In July of 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals challenging a decision of the Court of Special Appeals. The decision said the creation of critical area maps in support of a proposed development in the critical area that received growth allocations from the Critical Area Commission was merely a ministerial duty. In the lower court's view the maps did not have to be accurate and did not have to correctly describe the shoreline, location of wetlands, or extent of hydric (wet) soils. The Chester River Association also submitted a brief challenging the decision.

The Court of Appeals affirmed the lower court's decision in its opinion filed August 21, 2009.

Terrapin Run (Maryland)
1/6/2012

In October of 2007, CBF filed an amicus curiae brief with the Maryland Court of Appeals supporting the appeal of a the Court of Special Appeals decision allowing a special exception for a 4,300 unit development on 935 acres in Allegany County abutting Green Ridge State Forest. CBF took exception to the lower court's view that a special exception does not have to conform to the county's Comprehensive Plan. The lower court held such plans were merely advisory. CBF believes that such a decision could wreck havoc on the development planning process in Maryland and render Comprehensive Plans — developed after years of study and input by citizens and commercial interests — obsolete. A national planning group and the Maryland Department of Planning submitted similar briefs challenging the decision.

On March 11, 2008 the Court of Appeals issued its opinion agreeing with the views of the lower courts.

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