Active Cases, Concluded Cases, and Amicus Curiae


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CHESAPEAKE CLEAN WATER BLUEPRINT
7/20/2015

U.S. District Court for the Middle District of Pennsylvania
American Farm Bureau Federation et al v. EPA
Case No.: 13-4079

3rd-Circuit-Court-of-Appeals_libraryofcongress_265x371On 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 more than 25 years of failed voluntary agreements, litigation, congressional actions, executive branch actions, and cooperative technical work, including a May 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 challenged several key aspects of the Bay TMDL - EPA's authority, the science and information used to develop the pollution limits, and the public participation process. The two initiating groups were eventually joined by several other agricultural 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.

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.

On September 13, 2013, Pennsylvania Federal Judge Sylvia Rambo issued a ruling upholding EPA's authority to issue the Bay TMDL and rejecting the arguments of the Farm Bureau, the National Association of Home Builders, and other big agricultural interests. See the District Court's Opinion. See press release

The American Farm Bureau Federation and its partners appealed the ruling to the Third Circuit. Attorneys general from 21 states (all but one outside the Bay watershed) and eight counties within the watershed filed amicus curiae (friend of the court) briefs supporting the American Farm Bureau Federation and its allies in the effort to derail Bay cleanup. See press release

In response, CBF fought back rallying support for the Blueprint through government leaders, environmental groups and organizations, and concerned citizens nationwide. As a result, in April of 2014, amici briefs in support of the EPA and upholding Judge Rambo's decision were filed by the states of Virginia, Maryland, Delaware, and the District of Columbia; seven cities including San Francisco, Baltimore, New York, Philadelphia, Los Angeles; a group of 19 prominent law professors; and 27 environmental organizations from across the country. See press release | View complete list of the parties and organizations signing amicus briefs | Get links to the individual briefs.

On November 18, 2014, oral arguments were held in the United States Court of Appeals for the Third Circuit located in Philadelphia, Pennsylvania. 

In a historic victory for the Chesapeake Bay Clean Water Blueprint on July 6, 2015, in a unanimous decision, the Third Circuit Affirmed the ruling issued by the District Court and Judge Sylvia Rambo upholding EPA's TMDL plan for the Chesapeake Bay. See Third Circuit Court decision According to the Court, “[e]stablishing a comprehensive, watershed-wide TMDL-complete with allocations among different kinds of sources, a timetable, and a reasonable assurance that it will actually be implemented is reasonable and reflects a legitimate policy choice by the agency in administering a less-then clear statute.” See press release

The Farm Bureau Federation has until October 5, 2015 to petition for a Writ of Certiorari with the United States Supreme Court.

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

MORE INFORMATION ABOUT THE CHESAPEAKE BAY CLEAN WATER BLUEPRINT

  Photo: Library of Congress


CLEAN WATER ACT PERMIT CHALLENGES
7/19/2015

MS4 PERMIT CHALLENGES

Stormwater-Runoff_Krista-SchlyeriLCP_265x371Municipal Separate Storm Sewer Systems (MS4s) discharge polluted runoff from buildings, parking lots and roads. MS4 permits are issued to municipalities to ensure that the MS4 pollution is regulated pursuant to the Clean Water Act. MS4 permits have been issued by the Maryland Department of the Environment (MDE) that have insufficient limits and unenforceable terms, and are therefore allowing pollution to impact our local waters.

Maryland Court of Special Appeals
Case No.: 1851-2014

CBF challenged the MS4 permit issued to Anne Arundel County by filing a Petition for Judicial Review on March 14, 2014 with the Circuit Court for Anne Arundel County. Oral arguments were held on November 10, 2014. The Circuit Court Judge affirmed the permit, granting MDE deference in its decision to issue the permit.

CBF and its partners West/Rhode Riverkeeper and Magothy River Association filed an appeal to the Court of Special Appeals on December 22, 2014 (Case No.: 1851-2014). This case has been consolidated with the MS4 appeals filed by Earthjustice in Prince George's and Montgomery Counties. Oral arguments are tentatively scheduled for November, 2015.

In addition, CBF filed an amicus brief in the Maryland Court of Special Appeals for a similar legal challenge to the MS4 permit issued to Montgomery County. On April 3, 2015, the Court ruled in favor of Anacostia Riverkeeper holding that the county permit does not comply with Maryland law, the Clean Water Act, and Federal Regulations. The court remanded the MS4 permit to MDE to address certain deficiencies identified by the court. We are optimistic that the state will not appeal this decision to the Court of Appeals and that we can negotiate revisions to the permit that satisfy our objections.

CBF also filed Petitions for Judicial Review of the MS4 permits issued in December 2014 and January of 2015 to the following Maryland Counties:

Howard County - Case No.: 13-C-15-102090
Charles County - Case No.: 08-C-15-000136
Carroll County - Case No.: 06-C-15-068113
Frederick County - Case No.: 10-C-15000259
Harford County - Case No.: 12-C-15000220

CBF, MDE and the Respondent Counties have requested a Stay of the Proceedings for Charles, Carroll, Frederick and Harford Counties while the Montgomery County case is being resolved.

Howard County filed a Motion to Dismiss CBF's Petition for Judicial Review alleging lack of standing and a hearing has been scheduled for May 19, 2015. CBF's brief on the merits of our challenge was filed on April 30, 2015.

These cases are being handled by CBF Litigation Attorney Paul Smail and CBF's Maryland Office.

 

United States District Court for the District of Maryland
Potomac Riverkeeper and Chesapeake Bay Foundation v. Washington Suburban Sanitary Commission
Case No.: 14-CV-00417-TDC

Potomac-River_CBFLee-Goodwin_265x371The Potomac Water Filtration Plant, owned and operated by Washington Suburban Sanitary Commission (WSSC), provides the majority of the public drinking water supply in Montgomery County and Prince George's County, Maryland. The facility is located on the south branch of the Potomac River approximately 10 miles northwest of Washington, D.C. and within the Chesapeake Bay watershed. The plant removes water from the Potomac River, filters and disinfects it, transfers the treated water to a drinking water reservoir, and discharges the remaining wastewater back into the Potomac River. WSSC has chronically failed to meet monthly and daily effluent limitations for sediment and aluminum in the wastewater.

On February 12, 2014, CBF and Potomac Riverkeeper filed a lawsuit in the U.S. District Court of Maryland against WSSC for significant and ongoing violations of the Clean Water Act including National Pollutant Discharge Elimination System (NPDES) permit violations. Thereafter, the Maryland Department of the Environment (MDE) filed a Notice of Intent to Sue WSSC. CBF is currently attempting to negotiate a settlement agreement and consent decree with WSSC and MDE. In the meantime, discovery is ongoing as CBF has served WSSC with Interrogatories and Request for Production of Documents. A trial on the merits has not been scheduled by the U.S. District Court.

This matter is being handled by CBF Litigation Attorney Paul Smail and Litigation Fellow Ariel Solaski, along with counsel from the Environmental Integrity Project.

 

Virginia-Farm_Justin-Black/CBFCity of Richmond Circuit Court
Chesapeake Bay Foundation v. Commonwealth of Virginia, et al.
Case No.: CL-14002367-00

On March 28, 2014, the Virginia State Water Control Board approved amendments to the Virginia Pollution Abatement Program General Permit and Regulation for Animal Feeding Operations (AFO). The amendments do not require livestock stream exclusion per the statutory requirements of the Virginia Code. Without stream exclusion regulations, livestock will excrete nutrient-laden waste, trample buffer vegetation, and erode stream banks, preventing the maintenance of buffer zones necessary to protect water quality.

On April 25, 2014, CBF filed a Notice of Appeal with the Virginia State Water Control Board and on May 23, 2014, CBF filed a Petition for Appeal with the Richmond Circuit Court. The Virginia Farm Bureau Federation, Virginia Agribusiness Council, Virginia Cattlemen's Association and the Virginia State Dairymen's Association have intervened in this case. Briefs were filed by the parties and a hearing was held on July 2, 2015.

On July 9, 2015, the Honorable Judge C.N. Jenkins, Jr. Affirmed the rulings of the Virginia State Water Control Board approving the amendments to the General Permit and the AFO Regulations. While in his ruling, the Judge recognized the importance of Bay restoration for a healthy Chesapeake Bay with the citizens of the Commonwealth, he also noted the limited nature of the Circuit Court's review.

Chesapeake Bay Foundation has decided to not appeal this matter, but will continue to press the Commonwealth to fully fund its voluntary stream fencing programs.

This matter is being handled by CBF Vice President for Litigation Jon Mueller and staff counsel in the Virginia Office.

 Photos (from top): copyright Krista Schlyer/iLCP; Lee Goodwin/CBF; Justin Black/CBF


MERCURY POLLUTION
6/19/2015

U.S. Court of Appeals for the D.C. Circuit
White Stallion Energy Center, et al. v. EPA
Case No.: 12-1100

Power-Plant_Krista-SchlyeriLCP_265x371Since 2005, CBF has successfully partnered with other organizations in court to require stringent controls on coal-fired power plants for hazardous air pollutants such as mercury. In collaboration with others, CBF's legal actions led to the creation of federal regulations, called the Mercury and Air Toxics Standards (MATS), which are designed to limit the emission of mercury and other toxic air pollutants. The reduction of airborne mercury will reduce the amount of mercury present in fish found within the Chesapeake Bay watershed and protect public health. However, the MATS have been repeatedly challenged in court by the electric generating industry and some states. While those actions have been defeated in the lower courts, the challengers have asked the U.S. Supreme Court to overturn those decisions and vacate the MATS.

On June 19, 2015, in a 5-4 decision, the United States Supreme Court ruled against the EPA and remanded the case back to the United States Court of Appeals for the D.C. Circuit for review of the economic impacts of the rule. The Supreme Court found EPA should have considered industry's costs in its decision to regulate power plants. This, despite the fact that EPA did consider those costs after deciding that mercury and other hazardous pollutants emitted by power plants presented a significant health risk requiring regulation.

CBF will determine the appropriate course of action necessary to limit mercury pollution in our lakes, rivers, and the Bay pending review by the D.C Circuit.

In the meantime, CBF has intervened in another industry lawsuit targeting the mercury and air toxics standards for power plants. In this challenge, EPA denied petitions by conservation groups and industry groups asking the agency to reconsider EPA's air toxics standards for coal and oil-fired electric utility stream generating units. This case is currently in the United States Court of Appeals for the District of Columbia Circuit and assigned case number 15-1180.

These matters are being handled by counsel for Earthjustice and CBF Vice President for Litigation Jon Mueller. CBF is participating with a number of other environmental groups, including Sierra Club and the Natural Resources Defense Council, as well as public health organizations like the American Lung Association.

Photo: copyright Krista Schlyer/iLCP

MARYLAND LAND USE CASES
5/18/2015

Circuit Court for Anne Arundel County
In the Case of Terry and Jami Young
consolidated with
Margaret McHale v. Board of Appeals of Anne Arundel County, et al.
Case No.: 02-C-14-187171

Urban sprawl    Copyright Scott CramerMaryland's Critical Area Act has a strict prohibition on development within the 200 foot buffer surrounding tidal waters. The Young family sought variances to this prohibition from the Anne Arundel County Administrative Hearing Officer in 2012. The variances were denied. The Youngs appealed that decision to the Anne Arundel County Board of Appeals, which granted the variances on December 11, 2013 because, among other reasons, construction of a home in the buffer would prevent vandalism on the vacant land. This is not a variance criterion and to allow the granting of variances for such reasons would undermine the Critical Area Act. As a result, CBF filed a Petition for Judicial Review with the Circuit Court for Anne Arundel County on January 10, 2014 seeking a reversal of the decision of the County Board of Appeals.

The Critical Area Commission also filed a Petition for Judicial Review of the Board of Appeals decision. CBF's case against the Youngs has been consolidated with the Critical Area Commission's actions. Arguments on the Petitions for Judicial Review were held on April 17, 2015.

On May 18, 2015, in an unwritten Opinion, the Circuit Court affirmed the decision of the Anne Arundel County Board of Appeals, allowing the Young's development within the buffer. CBF has decided to not appeal this decision.

These cases are being handled by CBF Litigation Attorney Paul Smail.

 

Maryland Court of Special Appeals
Friends of Frederick County et al v. Board of County Commissioners
Case No.: 01259.September Term, 2013

In 2010, the Frederick Board of County Commissioners adopted a new Comprehensive
Plan and Zoning plan after two years of studies, reviews and public input. Shortly thereafter, a new Board took office and quickly amended the zoning map associated with the plan to "up zone" certain farm properties. 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 changes unlawful. However, because a final Commission vote had not yet occurred, the Court found that the matter was not ripe for a decision and dismissed the case.

CBF continued to monitor the map amendment process until a final decision to amend the Comprehensive Plan map 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. The Circuit Court ruled in favor of Frederick County holding that the BOCC engaged in proper and lawful comprehensive planning and comprehensive zoning. This decision was appealed to the Maryland Court of Special Appeals on December 19, 2013 and oral arguments were held on October 7, 2014. A decision has not yet been reached.

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

 Photo:copyright Scott Cramer


SPARROWS POINT
5/1/2015

Sparrows-Point_Nikki-Davis_265x371The 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 protection in Delaware federal court a year later.

The Chesapeake Bay Foundation has been directly involved in a number of federal lawsuits and bankruptcy proceedings related to the Sparrows Point facility, including Chesapeake Bay Foundation et al v. RG Steel Sparrows Point, RG Steel Sparrows Point v. EPA and MDE, and RG Steel's filing for bankruptcy in federal court in Delaware.

Cleaning-Up Sparrows Point

It has been nearly two decades since EPA and MDE signed a consent decree with the then owners of the Sparrows Point Steel Mill resolving litigation for numerous federal and state hazardous waste violations.  However, other than removal of chromium from groundwater beneath the Rod and Wire Mill, very little clean-up of hazardous waste  has occurred since then. In fact, environmental monitoring suggests that hazardous waste continues to leave the site from the Coke Point area, contaminating the adjacent Patapsco River and Bear Creek.

The new owner of the site, Sparrows Point Terminal, LLC, entered into a settlement agreement with EPA and an administrative consent order with  MDE. The agreement with EPA waives claims for contamination found offshore of the plant site which left the site prior to SPT’s purchase of the property. In exchange, SPT committed $3 million to investigate and remediate offshore contamination.  Under the consent order, SPT has committed $46 million to undertake investigation and remediation work on the former steel mill property. 

CBF continues to monitor the progress of the on-site work, the offshore investigation, and the new owner’s voluntary cleanup efforts. When EPA refused to study the toxicity of the sediments offshore from the plant site, we hired an outside consultant to analyze sediment collected from the river bottom for toxicity. Several of those samples were found to be toxic to bottom dwelling organisms and fish.  CBF also continues to advocate for the new owners’ compliance with state and federal environmental laws and to ensure it will undertake all necessary on-site work in accordance with the consent decree as well as federal and state law. 

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

MORE INFORMATION ABOUT SPARROWS POINT

 Photo: copyright Nikki Davis


CONOWINGO DAM RELICENSING
5/1/2015

Federal Energy Regulatory Commission
Project No.: P-405-106

Conowingo-Dam_Eliot-Malumuth-Laurel-Maryland_copyright-Eliot-Malmuth_265x371Since its construction in 1928, the Conowingo Dam on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today researchers estimate the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during big storms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below.

In August, 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after Maryland Department of the Environment issues a water quality certification for the projects. CBF continues to monitor the projects for any new developments and will file comments or take action when necessary to protect water quality and aquatic resources. 

This matter is being handled by CBF Litigation Attorney Paul Smail, CBF senior scientist Beth McGee and CBF’s Maryland Office. 

 Photo: copyright Eliot Malumuth



CBF Concluded Litigation Cases RSS Feed
CHALLENGES TO EPA MERCURY RULES (Delisting Rule and CAMR)
5/1/2015

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

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, the U.S. Supreme Court denied a request for review.

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


MERCURY DEADLINE SUIT
5/1/2015

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

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 hazardous 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 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.

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


TRICITY WETLANDS PERMIT
5/1/2015

Court of Appeals of Virginia
Chesapeake Bay Foundation v. Commonwealth of Virginia
Case No. 1897-12-2

In December, 2003, CBF and others appealed the issuance of a state 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. Each challenge by the Commonwealth was denied; however, the lower courts continued to uphold the merits of the State Water Control Board’s decision.

On December 9, 2013, oral arguments were held in the Virginia Court of Appeals where the court considered whether CBF’s appeal should be dismissed because the circuit court failed to issue a written opinion or to provide CBF a copy of an earlier order.  The Court of Appeals issued a divided opinion on several issues, but ultimately affirmed the lower court’s decision.  Because of the nature of the opinion, CBF did not appeal the decision, but continues to monitor any efforts to develop the site and take appropriate action. 

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


CONCENTRATED ANIMAL FEEDING OPERATION (CAFO)
5/1/2015

United States Court of Appeals for the Fourth Circuit
Louis Alt d/b/a Eight is Enough, et al. v. US EPA, et al.
Case No.: 13-2527

In June, 2012, Lois Alt filed suit against the Environmental Protection Agency (EPA) challenging an Agency Order finding that Ms. Alt, as owner and operator of a poultry-broiler and concentrated animal feeding operation ("CAFO"), violated the Clean Water Act ("CWA") by discharging pollutants into waters of the United States without a National Pollutant Discharge Elimination System ("NPDES") permit.

In July, 2013, CBF moved to intervene in this matter. The district court denied CBF's intervention request as untimely and denied CBF the right to file an amicus brief. In a separate merits decision the district court held that EPA had no jurisdiction to order Ms. Alt to obtain a CWA permit, deciding that the polluted runoff from her farm was "agricultural stormwater," and was therefore exempt from CWA limitations. CBF appealed the intervention decision to the United States Court of Appeals for the Fourth Circuit. Food & Water Watch and EPA filed separate appeals of the merits decision.

Oral arguments in CBF's intervention case were held in May, 2014. In July, the Fourth Circuit affirmed the decision of the district court denying CBF's Motion to Intervene. In September, 2014, EPA and Food & Water Watch dismissed their appeal against Ms. Alt.


DOBBINS ISLAND IN THE MAGOTHY RIVER
5/1/2015

Maryland Court of Special Appeals
Chesapeake Bay Foundation et al. v. David Clickner
Case No.: 1926. September Term, 2012

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, Clickner 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. For the next three years, CBF litigated the case—and defended its standing to file the lawsuit—first in Circuit Court and then in the Court of Special Appeals. In April 2010, the Court of Special Appeals sent the case 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. CBF and the Magothy River Association appealed this decision to the Anne Arundel County Circuit Court and then to the Maryland Court of Special Appeals. On February 20, 2014 the Court, in an unpublished opinion, upheld the decision of the Board of Appeals to grant all of the variances.

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


LITTLE ISLAND IN THE MAGOTHY RIVER
5/1/2015

Maryland Court of Special Appeals
Margaret McHale et al. v. DCW Dutchship Island LLC et al.
Case No.: 60. September Term, 2013

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. Wagner did not have 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. Little Island is entirely within the Critical Area. The majority of the island, including the new house, is also within the 200-foot buffer, an area of land in which construction is prohibited without a variance.

After the new construction was discovered by county and state inspectors, Wagner retroactively applied for the necessary variances and modifications to the buffer map. 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, modification of the map 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.

This case was eventually appealed all the way to the highest court in Maryland, the Court of Appeals, where the Circuit Court's decision was affirmed and the after-the-fact Critical Area variances were upheld. In the Court of Appeals written opinion, issued on August 14, 2014, the Court upheld all the variances, but remanded the case to the Anne Arundel County Board of Appeals to explain why it granted Wagner a 320-foot impervious boat ramp, something that had not existed prior to Wagner's ownership.

In a one-page opinion, the Board of Appeals simply affirmed its decision to allow the boat ramp finding that the “granting of a variance for the boat ramp is unnecessary, as the boat ramp is a water dependent facility for which a variance is not required."

While the final resolution of the case was not what we sought, the notoriety of this case enabled us to achieve substantial legislative gains: citizens are granted standing to challenge county variance decisions before county Boards of Appeal and in court if they can meet the same standing requirements of federal law whether or not they appeared before the Administrative Hearing Officer or the Board; and a person who constructs within the Critical Area without a proper variance must first tear down the structure before applying for a variance.

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


SPARROWS POINT
5/1/2015

U.S. District Court for the District of Maryland
Chesapeake Bay Foundation et al. v. RG Steel Sparrows Point
Case No. 1:10-cv-01861-JFM

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 our concerns without litigation failed, a citizen suit was filed in federal court against past and then present owners Arcelor Mittal 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.

This case was stayed by the Court following the 2012 bankruptcy petition of RG Steel Sparrows Point.
U.S. District Court for the District of Maryland

RG Steel Sparrows Point v. EPA and MDE
Case No. 1:97-cv-00558-JFM

Although under the terms of the 1997 consent decree with Bethlehem Steel Company (BSC) clean-up of the steel mill site is the responsibility of any subsequent owner, Severstal contended that because it had purchased the property 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 and into the surrounding water. In July of 2010, under a provision of the consent decree, Severstal filed a petition with the District Court arguing that EPA and MDE could not make it examine offsite contamination. The steel companies 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. 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 Arcelor Mittal opposed CBF and its allies' right to intervene. 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 were 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. In an effort to resolve the dispute without judicial intervention, the Court ordered the parties to try and reach an agreement on the scope of the offshore investigation. CBF participated in negotiations; however, the agencies did not recognize CBF's scientific arguments that the scope of the offshore investigation was too limited and CBF was obliged to file an objection to the settlement reached between the governments and RG Steel.

On March 15, 2012, District Court Judge J. Frederick Motz denied CBF's objections and formally approved the offsite investigation agreed upon by RG Steel, EPA, and MDE. As a result, on May 2, 2012, CBF along with our partners, including the Baltimore Harbor Waterkeeper, appealed his decision to the U.S. Court of Appeals for the Fourth Circuit. However, due to RG Steel's bankruptcy filing, on October 25, 2013, the case was sent back to Judge Motz to decide whether the bankruptcy precluded resolution of the appeal. Recognizing that the bankruptcy blocked the ability of the District Court to act, CBF voluntarily dismissed its appeal, but convinced the agency to rescind the prior offsite work plan proposed by RG Steel. As a result, on January 13, 2014, Judge Motz ordered that RG Steel's obligation under the offsite investigation agreement be extinguished and the March 15, 2012 Order was vacated opening the door for a comprehensive offsite investigation. READ MORE

U.S. Bankruptcy Court for the District of Delaware
In Re: RG Steel Sparrows Point
Case No. 12-11661

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 was up for auction. Environmental Liabilities Transfer (ELT) and Commercial Development Co. (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 environmental obligations under the BSC consent decree and to perform the off-site investigation. CBF, EPA and MDE successfully negotiated with RG Steel for a provision in the bankruptcy 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.


MARCELLUS SHALE PROJECTS
8/5/2013

STATE LEVEL

On April 1, 2009, Pennsylvania's Department of Environmental Protection (DEP) eliminated the role of local conservation districts in the review process of Erosion & Sediment Control plans and permits and Stream and Wetlands Encroachment permits for 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 sediment control general permits. One of the companies, however, filed a separate appeal of the decision to revoke its 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 its permit review process to prohibit an expedited review for applicants 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. 

To ensure compliance with the agreement, CBF, with the assistance of an outside contractor, has continued to monitor natural gas well pad construction in Exceptional Value and High Quality watersheds in Pennsylvania.
 

FEDERAL LEVEL

On April 4, 2011, CBF and other groups filed a formal citizen petition with the federal government requesting the completion of a programmatic environmental impact statement (PEIS) to assess the cumulative impacts of drilling in the Marcellus Shale formation on 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 it to provide the necessary oversight and guidance to all federal agencies involved in the regulation of natural gas development. No formal response from CEQ has been provided.

In February of 2012, CBF filed an amicus curiae brief in Brooklyn federal court in support of New York State’s position that federal coordination is required under the National Environmental Policy Act (NEPA) for the Delaware River Basin Commission's authorization of unconventional natural gas development 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.


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 permits regulating their discharge of wastewater into tributaries of the Susquehanna and Potomac Rivers. These challenges claimed that the nitrogen and phosphorous limits imposed by the permits were invalid because they were 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 argued that they should not be bound by the tributary strategies as the strategies had not been approved by their state legislatures.

CBF supported the state agencies in court arguing that the stricter limits translated into fewer nutrients going into the Chesapeake Bay.

These matters were handled by former CBF staff attorney Amy McDonnell.


QUEEN ANNE'S COUNTY AGRICULTURAL REZONING
4/7/2012

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

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, landowners applied to the County requesting re-zoning, or map amendments. These applications were reviewed according to 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 the 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.
This decision violated Article 66B of the Maryland Code and a 2009 law that requires consistency between county land use decisions and the county's comprehensive plan. As a result, CBF, local property owners, and several local citizen organizations filed a lawsuit in 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 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.


MERCK PERMIT CHALLENGE
4/1/2011

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 (DEQ) to raise the allotted limit on the amount of nutrients Merck's Stonewall Plant could discharge into the Shenandoah River, a tributary to the Chesapeake Bay. Originally, the pharmaceutical manufacturer was permitted to discharge 14,619 pounds of nitrogen and 1,096 pounds of phosphorous from its wastewater-treatment facility into the River each year.

The new allocations allowed the plant to discharge 43,835 pounds of nitrogen and 4,384 pounds of phosphorous per year. In an attempt to offset the new loads, the Board directed Merck to identify companies that were no longer releasing nutrients or were discharging fewer nutrients to the Shenandoah River than their permits required; there was no requirement that Merck identify such offsets prior to being granted a permit amendment. Importantly, there was no guarantee that the offsetting loads identified by Merck would continue into the future to ensure a continuous offset.

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 which independently set nutrient load allocations for sources like Merck, 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 approved by Richmond Circuit Judge Melvin R. Hughes Jr., which required Merck's nitrogen and phosphorus discharges to conform to EPA's guidelines for pollution flowing into the Bay.

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

 


MORELAND
1/28/2011

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. Moreland applied for variances to 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 (AHO) denied this request. Moreland appealed the AHO's decision to the Anne Arundel County Board of Appeals. The Board also denied the variance 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.

CBF appealed this decision to the Maryland Court of Appeals. Finally, on January 28, 2011 the Court reversed the lower courts and affirmed the Board's decisions to deny the variances.
This matter was handled by CBF Vice President for Litigation Jon Mueller.


CHESAPEAKE 2000 AGREEMENT LAWSUIT
5/10/2010

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

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 began 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, CBF agreed to stay the litigation and continue negotiations. Municipal stormwater and wastewater treatment groups intervened to oppose our suit, but were not required to participate in the negotiations.

After 15 months of negotiation, the Plaintiffs and EPA reached an agreement and a settlement was finalized on May 10, 2010. The historic settlement agreement provides a legally binding, enforceable commitment that EPA will take specific actions to ensure that pollution to rivers, streams, and the Chesapeake Bay is reduced sufficiently to remove the Bay from the federal "impaired waters" list.  EPA agreed that it would develop a Bay Total Maximum Daily Load (TMDL) by December 31, 2010.

The agreement is comprehensive and includes accountability and consequences for failure. The agreement specifically incorporates the TMDL process and requires that state implementation plans meet specific criteria. Importantly, the agreement states 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 for Litigation Jon Mueller.


ELIZABETH WILSON WASTEWATER TREATMENT PLANT
9/30/2009

 

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 at 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 was 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 was 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 how much land would be needed to offset a new discharge to the creek.

Because CBF believed that such a permit, if left unchallenged, would only lead to more construction in the sensitive Critical Area and further harm 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 the passage of a new law. During the course of this case and largely as a result of CBF’s efforts, the Maryland General Assembly passed legislation in 2009 that would prohibit the issuance of similar permits in the future.

 


BLUE PLAINS SEWAGE TREATMENT PLANT
8/6/2009

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

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 such a 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 CBF’s objectives has been issued.

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


KING WILLIAM RESERVOIR
7/1/2009

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

In 2001, after more than 10 years of studies and research, the Norfolk District of the U.S. Army Corps of Engineers denied a Clean Water Act permit for the proposed King William Reservoir 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 power to 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 exercising its authority to deny the permit. The full decision was appealed by the EPA to the U.S. Court of Appeals for the D.C. Circuit in June of 2009, 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 for Litigation Jon Mueller along with counsel from the Southern Environmental Law Center. The University of Virginia's Environmental Law Clinic also provided support.

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

Virginia's Department of Environmental Quality (DEQ) issued a permit in 1997 to the City of Newport News to allow construction and operation of the proposed King William 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 and asked for a formal hearing before the Board but were denied.

CBF appealed the Board's decision to grant the permit extension to the Circuit Court for the City of Richmond, and litigated the case—including defense of its standing to sue—through appeals to the Virginia Court of Appeals and eventually 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 for Litigation Jon Mueller.


PHILIP MORRIS WASTEWATER PERMIT
4/20/2007

 

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 for the first time that a citizen group can sue both on its own behalf and on behalf of its members. See Philip Morris USA, Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564, 581 (Va. 2007). Consistent with CBF’s 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. CBF’s petition 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 would 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. Subsequently, CBF, the State, and Philip Morris agreed to settle the lawsuit. Under a settlement agreement approved by the Circuit Court, Philip Morris agreed to comply with the reduced nitrogen and phosphorous load limits effective immediately. The settlement concluded this matter in favor of CBF, the James River and the Bay.

The litigation was handled by CBF Vice President for Litigation Jon Mueller and former Virginia staff attorney Joe Tannery

 


BLACKWATER RESORT DEVELOPMENT
10/30/2006

 

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, Maryland. 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.  As part of the Chesapeake Bay Critical Area Act, the Maryland General Assembly limited the amount of acres on which a county could allow construction within the Critical Area.

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 full review. To preserve our objection, CBF filed a petition for review 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. CBF 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 in the County Circuit Court. Thus, all together, CBF had seven cases pending in Circuit Court.  CBF was represented by local attorney Tom Deming.

CBF was also actively involved in opposition to the City's application to the state 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.

Jon Mueller, then Director of the Litigation Department, participated in the numerous negotiations that led 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 were dismissed.

 


EPA PETITION (Federal Case)
6/13/2005

 

In December 2003, CBF sent a petition to the U.S. Environmental Protection Agency (EPA) 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 were finalized on 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 has continued to review significant discharge permits issued by the Bay states to ensure that they comply with the law and the new agreement.

 


TOWN OF ONANCOCK
4/30/2005

 

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 CBF’s motion for summary judgment. Despite evidence to the contrary, 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 set stricter limits for the Onancock plant and the town 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.

 



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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