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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.