ContentsChesapeake Clean Water Blueprint (Bay TMDL) Clean Air Act Challenges Clean Water Act Challenges Clean Water Act Permit Challenges Forest Conservation Hydropower Natural Gas
CHESAPEAKE CLEAN WATER BLUEPRINT (BAY TMDL)
United States District Court for the District of Columbia
Chesapeake Bay Foundation, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 1:20-cv-02529 (and consolidated case)
In December 2010, EPA used its authority under the federal Clean Water Act to issue a Total Maximum Daily Load for the Chesapeake Bay and its tributaries (Bay TMDL) to limit excess nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed.
A requirement of the Bay TMDL is each jurisdiction (DC, DE, MD, NY, PA, VA, and WV) were directed to issue Watershed Implementation Plans (WIP’s) in three phases—2010, 2012, and 2019. WIP’s include detailed, specific steps each jurisdiction must take to meet the Bay TMDL by 2025. The combination of the TMDL and WIPs serves as the Chesapeake Bay Clean Water Blueprint (“Blueprint”). It was agreed that EPA would oversee TMDL progress and take action(s) necessary to ensure that the Bay States adhered to the terms of the Chesapeake Bay Agreement.
In the past dozen years, CBF has been successful in litigation to support Bay restoration and the Blueprint. CBF’s lawsuit against EPA in 2009 resulted in a settlement agreement that set specific deadlines for development and completion of the Bay TMDL. Fowler et al. v. EPA (2010). CBF defended the Blueprint from attacks by the American Farm Bureau and its allies. In that case, a federal court judge in Pennsylvania found that the Blueprint created through a federal/state partnership was legal and an example of “cooperative federalism.” This decision was upheld by the Third Circuit Court of Appeals in American Farm Bureau v. EPA (2015). A request to have that decision reviewed by the Supreme Court was denied. See Litigation’s concluded cases for additional details.
In 2019, Pennsylvania and New York submitted Phase III WIP’s that failed to clearly identify how each state would attain levels of pollution reduction required by the Bay TMDL by 2025. EPA approved these WIP’s without significant change, ensuring that Bay water quality will not be restored by 2025. As a result, in September 2020, CBF and our partners filed suit against EPA in the U.S. District Court for the District of Columbia for failing to comply with its responsibilities under the Clean Water Act and the Blueprint. We sought to have a court direct EPA to require Pennsylvania and New York to revise their respective WIPs so that on their face the WIPs meet each states’ TMDL obligations by 2025. Our partners in the Litigation are Anne Arundel County, Maryland; The Maryland Watermen’s Association; and Robert Whitescarver and Jeanne Hoffman, CBF members and operators of a livestock farm in Virginia. Our case was consolidated with a separate, but similar lawsuit filed by Attorneys General in Maryland, Virginia, Delaware, and the District of Columbia. New York intervened as a defendant in both cases but was subsequently dismissed when it voluntarily amended its WIP. EPA filed a Motion to Dismiss the cases in November 2020. Plaintiffs have been granted an extension until February 9, 2023, to respond to EPA’s motion if we are not able to settle the matter before then. EPA’s reply would be due by February 23, 2023.
This case is being handled by Vice President for Litigation Jon Mueller and the Director of Litigation Paul Smail.
Trappe East Wastewater Treatment Facility
Circuit Court of Maryland for Talbot County
In Re: Petition of Chesapeake Bay Foundation, et al.
Case No.: C-20-CV-21-000006
A developer plans to build a mixed-use community consisting of commercial uses, over 2,500 residential dwellings, and a 30-acre man-made lake in Talbot County, Maryland called Lakeside at Trappe. The property currently consists of row crop farmland near Miles Creek and the Choptank River. The developer plans to connect the residences and commercial uses to a wastewater treatment facility (WWTF) that will be constructed on-site. The treated wastewater, or effluent, will be disposed through groundwater discharge by way of land application using spray irrigation. In a spray irrigation system, the effluent is sprayed on to crop land and the pollutants are supposed to be integrated in the crops or retained in the soil. However, studies show that some of the pollutants will seep through the ground to the groundwater where they will eventually make their way to surface waters (rivers, creeks, and wetlands). The Lower Choptank River is already impaired by sediments, nutrients, and fecal coliform.
The Maryland Department of the Environment (“MDE”) issued a state discharge permit for the WWTF on December 22, 2020. The permit allows the WWTF to discharge up to 540,000 gallons of effluent per day when the Lakeside project is complete. This makes the WWTF the largest facility of its kind in the State of Maryland. When issuing the permit, MDE did not acknowledge the impacts of this connection between groundwater discharges to surface waters and how this connection implicates the Chesapeake Bay Blueprint. This sets a dangerous precedent when permitting future on-site facilities such as this.
On February 1st, CBF, along with local residents, appealed the decision to issue the state discharge permit by filing a Petition for Review with the Talbot County Circuit Court. A separate, but similar Petition was filed by ShoreRivers. This case has been remanded back to MDE for further consideration of the discharge permit in question. CBF’s case has therefore been stayed. MDE held a public hearing on a revised permit on October 28, 2021, and we submitted comments. We await the issuance of a revised permit and will determine if additional action is necessary.
This matter is being handled by the Director of Litigation Paul Smail.
CLEAN AIR ACT CHALLENGES
Actions to Reduce Greenhouse Gas Emissions Under the Clean Air Act
United States Court of Appeals for the District of Columbia Circuit
Union of Concerned Scientists, et al. v. United States Environmental Protection Agency, et al.
Case No.: 9-1230 (and consolidated cases)
In September of 2019, the National Highway Traffic Safety Administration (NHTSA) and EPA jointly issued a final rule: The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program (SAFE Part One Rule). In this rule, NHTSA and EPA, under separate statutes, removed states’ authority to regulate greenhouse gas emissions from vehicle tailpipes and to implement zero-emission vehicle (ZEV) mandates. CBF filed a comment letter opposing this Rule.
For decades, EPA has granted California a waiver under the Clean Air Act to establish its Clean Cars program, including greenhouse gas emissions and ZEV (zero emissions vehicle) standards. In the Bay watershed, Delaware, Maryland, New York, Pennsylvania, Virginia, and D.C. have adopted elements of California’s program in order to reduce air pollution and fight climate change. In addition to rescinding California’s authority to establish the Clean Cars program, the Part One Rule also removed other states’ authority to adopt California’s stringent standards.
In response, CBF filed an administrative petition requesting that NHTSA reconsider and withdraw its portion of the Part One Rule. CBF also joined a coalition of public interest groups in filing a petition for review with the D.C. Circuit challenging EPA’s portion of the Part One Rule. Our case was consolidated with other cases filed by NGOs, industry groups, and states.
On January 19, 2021, NHTSA denied CBF’s petition for reconsideration. On January 20, 2021, President Joseph Biden signed Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” which establishes a policy to listen to science and improve public health and protect our environment. The Order directed all executive departments and agencies to review, and as appropriate, take action to address federal regulations finalized during the last four years that conflict with these objectives. On February 8, 2021, the D.C. Circuit granted a motion from the Agencies to hold the consolidated Part One cases in abeyance while the Agencies conduct their review of SAFE Part One.
In April 2021, both Agencies issued proposed rulemakings reconsidering and revising SAFE Part One; CBF joined coalition comments on both regulations. NHTSA issued a final rule repealing its portion of SAFE Part One in December 2021. In March 2022, EPA issued a final rule reinstating California’s waiver and states’ authority to adopt the Clean Cars program. CBF’s case remains in abeyance.
United States Court of Appeals for the District of Columbia Circuit
Competitive Enterprise Institute, et al. v. United States Environmental Protection Agency, et al.
Case No.: 20-1145 (and consolidated cases)
On April 30, 2020, NHTSA and EPA issued The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks (“SAFE Part Two Rule”). In this Rule, NHTSA weakened existing federal fuel economy standards (fuel economy is the number of miles a car can travel on one gallon of gasoline) and EPA weakened the federal carbon dioxide emissions standards for vehicle tailpipes. The Agencies’ weakening of the federal standards will result in significant increases of climate and air pollution that harm the environment and human health, including the residents and ecosystem of the Bay watershed.
As a result, on May 27th, CBF joined a coalition of public interest groups to challenge the Rule in the D.C. Circuit by filing petitions for review of both NHTSA’s and EPA’s actions. Our petitions have been consolidated with other appeals filed by industry groups, state air quality management agencies, and a coalition of states (including the Bay jurisdictions of Maryland, Pennsylvania, Virginia, New York, Delaware, and the District of Columbia). Petitioners, including the public interest groups, filed opening briefs on January 14, 2021. Prior to briefing being completed, and due to President Joe Biden’s Executive Order 13990 which required EPA and NHTSA to potentially propose new rules revising the SAFE Part Two standards, the consolidated cases have been held in abeyance as the Agencies review the Rule. CBF joined coalition comments on both Agencies’ proposals to reconsider and revise SAFE Part Two and on December 30, 2021, EPA finalized a rule strengthening the greenhouse gas emissions standards for light-duty vehicles, acknowledging that the SAFE Part Two rule weakened the prior standards. In April 2022, NHTSA concluded its review of SAFE Part II and issued a final rule strengthening fuel economy standards. These cases remain in abeyance.
These cases are being handled by CBF Litigation Staff Attorney Ariel Solaski.
Clean Power Plan
United States Supreme Court
West Virginia, et al. v. United States Environmental Protection Agency et al.
Case No.: 20-1530 (and consolidated cases)
On July 8, 2019, EPA issued a final rule repealing the Clean Power Plan and finalizing the Affordable Clean Energy Rule. The Clean Power Plan (October 23, 2015) was a regulatory program in place to reduce greenhouse gas and carbon dioxide emissions from coal fired power plants by transitioning to cleaner energy sources. The Affordable Clean Energy rule will be an ineffective replacement, that will require few, if any, emission reductions, and will ultimately lead to an increase in greenhouse gas emissions. Also, the new Affordable Clean Energy Rule does not meet the requirements of the Clean Air Act (CAA) because the states now have the responsibility of developing standards of performance for air emissions reductions. Under Section 111 of the CAA, EPA is authorized to establish these standards.
The Affordable Clean Energy Rule will be harmful to the health of the Chesapeake Bay and those living in and working within the Watershed because the NOx emitted from power plants enters the atmosphere and either combines with sunlight to form ozone or remains as a form of nitrogen that deposits directly into waterbodies. The nitrogen causes algae blooms that can be harmful to oysters, fish, and blue crabs. In addition, the new Rule will delay implementation of the Chesapeake Bay TMDL and worsen the impacts of climate change from which the Bay is already suffering.
CBF filed comments on both the repeal of the Clean Power Plan and the Affordable Clean Energy replacement rule urging EPA to withdraw the proposal and fully implement the Clean Power Plan. As a result, after the Final Rule was published, CBF filed a Petition for Review with the D.C. Circuit on Aug. 30th challenging both the Repeal of the Clean Power Plan. As a result, after the Final Rule was published, CBF filed a Petition for Review with the D.C. Circuit on August 30, 2019, challenging both the Repeal of the Clean Power Plan and the implementation of the Affordable Clean Energy Rule. CBF’s case has been consolidated with other appeals filed by NGO groups, energy organizations, and State Petitioners. CBF also intervened in an appeal brought by energy organizations who are challenging EPA’s authority to regulation greenhouse gas emissions under the Clean Air Act. Arguments in the appeals were held in front of a three-judge panel in the U.S. Court of appeals for the D.C. Circuit on October 8, 2020.
In a win for protecting air quality in the Chesapeake Bay watershed and in fighting change, on January 19, 2022, the D.C. Circuit issued an Opinion vacating the affordable Clean Energy Rule and directed EPA to write a new rule to regulate greenhouse gas emissions from power plants. The Court held that EPA acted unlawfully by limiting its authority under the CAA. The Court also held that climate change is the most pressing environmental challenge of our time and the ACE rule failed to reduce greenhouse gas emissions from power plants, one of the larges sources of emissions.
On April 29, 2021, a coalition of states led by West Virginia and coal companies filed a Petition for Writ of Certiorari with the U.S. Supreme Court asking the court to review the D.C. Circuit Court’s decision and determine whether the Clean Air Act grants EPA the authority to regulate carbon dioxide emissions from existing power plants by, in part, requiring a shift to alternative, less polluting sources of energy. CBF joined public health and environmental organizations and filed a brief in opposition on August 5, 2021. However, the Supreme Court granted the petition and arguments were held on February 28, 2022, in the U.S. Supreme Court.
On June 30, 2022, in 6-3 decision, the U.S. Supreme Court released its decision and reversed the judgment of the D.C Circuit Court holding that Congress did not grant EPA authority to regulate greenhouse gas emissions from existing power plants using the approach in the Clean Power Plan, which relied on a shift to cleaner sources of electricity generation. While this decision may narrow the federal government’s authority under the Clean Air Act, it leaves room for EPA to regulate carbon emissions from power plants and fulfill its duty to do so under the Act. Ultimately the Supreme Court remanded the cases back to the Court of Appeals for the D.C. Circuit. EPA is expected to issue a new rulemaking on carbon emissions from plants.
This case is being handled by Vice President for Litigation Jon Mueller and Litigation Staff Attorney, Ariel Solaski.
Actions to Reduce Particulate Matter Air Pollution
United States Court of Appeals for the D.C. Circuit
State of California, et al. v. United States Environmental Protection Agency
Case No.: 21-1014
The Clean Air Act (“CAA”) identifies six “criteria pollutants” known to endanger human health and welfare, including airborne particle pollution, or particulate matter (PM). Breathing in PM can be harmful to your health. Fine particulate matter, measuring less than 2.5 micrometers in diameter, known as PM2.5, is especially harmful because it can travel deep into the lungs and lead to serious health problems. Low-income communities and communities of color are disproportionately affected and more vulnerable to PM pollution due to proximity to the pollution sources and other compounding factors.
Sources of PM 2.5 pollution throughout the Chesapeake Bay region include industrial facilities, power plants, concentrated poultry operations, and vehicle tailpipe pollution. These sources also release precursor pollutants, like ammonia and nitrogen oxides, which contribute to the formation of PM and lead to harmful nitrogen deposition into the Bay and its waterways.
The CAA directs EPA to establish National Ambient Air Quality Standards (“NAAQS”) to protect public health and welfare for each criteria pollutant, including PM. EPA is required to review the NAAQS every five years to ensure they accurately reflect the latest scientific knowledge and are sufficiently protective. States are responsible for designing state implementation plans (“SIPs”) detailing how the NAAQS will be attained throughout the state.
In December of 2020, EPA issued a final action titled “Review of the National Ambient Air Quality Standards for Particulate Matter” that retained the existing NAAQS for PM 2.5 at the levels previously set in 2012. EPA’s PM NAAQS review process repeatedly marginalized scientific expertise and did not account for the latest scientific knowledge, and the 2012 standards are insufficient to protect human health and welfare (including the watershed). As a result, CBF joined a coalition of environmental and public health groups to file a challenge to the rule at the D.C. Circuit Court of Appeals on January 19, 2021. These consolidated cases are held in abeyance until March 1, 2023, as the EPA reviews the PM NAAQS Rule in accordance with Executive Order 13990 and determines whether to revise the PM standard. We continue to monitor EPA’s review and rulemaking process.
This case is being handled by CBF Litigation Staff Attorney Ariel Solaski.
See our blog post "Dirty Air."
Actions to Reduce Ozone Pollution
United States Court of Appeals for the D.C. Circuit
State of New York, et al. v. United States Environmental Protection Agency
Case No.: 21-1028
Ground-level ozone (O₃) is a “criteria pollutant” identified by the federal Clean Air Act (“CAA”) for which EPA is required to establish National Ambient Air Quality Standards (“NAAQS”) to protect human health and welfare. Ground-level ozone is a colorless and highly irritating gas that forms above the earth’s surface. Ozone forms when pollutants (including nitrogen oxides) being emitted by cars, power plants, and other sources chemically react in the presence of sunlight. Ozone, the principal component of smog, is one of the most dangerous forms of air pollution in the United States today. Ozone in the air we breathe can be harmful to our health especially for sensitive groups with preexisting conditions (for example, asthma and chronic bronchitis), children and the elderly, and those who work outdoors. Low-income communities and communities of color disproportionately bear the burden of ozone pollution and the associated harms to health.
The regulation of ozone pollution also impacts the health of the Chesapeake Bay. Nitrogen oxides (NOx) emissions, an ozone precursor, contribute to harmful algae blooms that keep sunlight from reaching underwater grasses and lead to dead zones that lack enough oxygen to sustain fish, crabs, and other Bay species.
On December 31, 2020, EPA finalized a Rule that retained the existing NAAQS for ozone at the levels set in 2015 (70 ppb). This level is insufficient to protect public health and welfare as required by the CAA. Also, during the ozone review process, EPA repeatedly departed from long-established practice and disregarded scientific expertise, rendering the final Rule arbitrary and unlawful. On February 11, 2021, CBF joined a coalition of environmental and public health groups to file a challenge to the Rule in the D.C. Circuit. Our case has been consolidated with other appeals. On February 22, 2021, the consolidated cases were held in abeyance as EPA reviews the 2020 Ozone NAAQS Rule in accordance with Executive Order 13990 and the Court has directed the parties to file motions to govern further proceedings by December 15, 2023. In February 2022, EPA established a Clean Air Scientific Advisory Committee Review Panel. The Committee is an independent scientific review committee that will provide scientific advice to EPA on matters related to the NAAQS. We continue to monitor EPA’s review and rulemaking process as our case remains in abeyance.
This case is being handled by CBF Litigation Staff Attorney Ariel Solaski.
Since 2005, CBF has successfully pushed EPA to require stringent controls on coal-fired power plants to reduce airborne hazardous pollutants, including mercury. In collaboration with other public interest groups, CBF’s legal actions led to the creation of a federal regulation known as the Mercury and Air Toxics Standards (MATS), 77 Fed. Reg. 9304 (Feb. 16, 2012). Unfortunately, it was again threatened in 2020.
MATS was based on EPA’s finding that it is “appropriate and necessary,” under the Clean Air Act, to regulate mercury and toxic air emissions from fossil fuel-fired power plants that pose a significant hazard to the environment and to human health. The mercury from power plants falls from the air into rivers, lakes, streams, and the Bay where it is taken up by plants and small organisms and gradually travels up the food chain into fish and other wildlife. The mercury is converted into methylmercury, a neurotoxin that attacks the human nervous system and causes IQ deficits in children. This toxin can eventually be ingested by people who consume contaminated fish and can cause serious adverse health effects. Mercury contamination is especially damaging for developing fetuses and young children. Low-income communities, communities of color, and subsistence fishers who rely on self-caught fish to feed their families, are also at greater risk.
Despite the dangers caused by exposure to mercury pollution, the MATS have been repeatedly challenged in court by industry groups and some states. While those actions were initially defeated in the lower courts, the challengers asked the U.S. Supreme Court to overturn those decisions and vacate the MATS in 2013. CBF joined in the filing of a brief opposing the challengers' petition for certiorari. The petition was granted, and the U.S. Supreme Court in Michigan v. EPA upheld the standards. The Court found that EPA had unreasonably failed to consider costs when conducting its “appropriate and necessary” finding.
In response to the Supreme Court’s ruling, EPA completed an economic analysis and in April 2016 issued a Supplemental Finding that the costs of the MATS Rule were reasonable, and the standards remained “appropriate and necessary.” This finding was immediately challenged in court by Murray Energy, a coal mining company. CBF joined a coalition of NGOs to intervene and defend the MATS. In April 2017, with the case fully briefed and scheduled for oral arguments, the government moved to hold the case in abeyance while it reconsidered its position supporting the Supplemental Finding; the Court granted EPA’s request and suspended the case.
In April 2020, EPA issued a final rule attempting to reverse the 2016 Supplemental Finding. The 2020 rule changed how EPA considered the costs and benefits of the MATS Rule and determined that regulating hazardous air emissions from coal-and oil-fired power plants is not "appropriate and necessary," even though studies show that once fully implemented, the MATS Rule led to a 96-percent reduction in emissions of mercury and other hazardous air pollutants at significantly less cost than industry had anticipated. During the public participation process, CBF submitted a comment letter on how EPA's proposal to undermine MATS could lead to increased mercury emissions within the Chesapeake Bay airshed and how reducing mercury pollution is crucial for Bay restoration and protecting the region’s communities.
In June 2020, CBF joined a coalition of public interest groups challenging the 2020 rule at the U.S. Court of Appeals for the D.C. Circuit. CBF’s case was consolidated with other appeals filed by industry groups and a coalition of states, including Bay watershed states. The case is docketed as Westmoreland Mining Holdings v. EPA (Case No.: 20-1160). On February 17, 2021, the Court issued an Order holding these cases in abeyance pending EPA’s implementation of Executive order 13990 directing EPA to review the MATS Supplemental Finding. On February 8, 2022, EPA issued a proposed rule to revoke the 2020 finding that it is not appropriate and necessary to regulate coal- and oil-fired electric utility generating units under the CAA. CBF joined public health and environmental organizations and submitted comments supporting EPA’s proposals and we continue to monitor for developments.
These matters are being handled by counsel for Earthjustice, CBF Litigation Attorney Ariel Solaski, and Vice President for Litigation Jon Mueller.
CLEAN WATER ACT CHALLENGES
United States District Court for the District of Maryland
ShoreRivers, Inc. et al. v. Valley Proteins
Case No.: 1:22-cv-00278
In the Circuit Court of Maryland for Dorchester County
State of Maryland Department of the Environment v. Valley Proteins
Case No.: C-09-cv-000022
Valley Proteins operates a poultry rendering facility that converts poultry by-products into feed fats and protein rich solids – processing 4.5 million pounds per week. The facility also operates an on-site private industrial wastewater treatment plant to treat discharged waste from the facility. The wastewater treatment plant operates under a National Pollutant Discharge Elimination System (“NPDES”) permit as an industrial facility that discharges to state surface waters. The facility, located in Linkwood, Maryland, discharges pollutants into the Transquaking River, which drains through Fishing Bay to the Chesapeake Bay.
Valley Proteins has a long history of violating the limits set in its NPDES permit. As a result, on April 13, 2022, CBF, and our partners ShoreRivers and Dorchester Citizens for Planned Growth, notified the owner and operator of the Valley Proteins facility of their intent to file a citizen suit in federal district court for violations of the Clean Water Act, the Resource Conservation and Recovery Act, and the Maryland Water Pollution Act.
CBF and partners then filed a complaint in the Federal District Court of Maryland against Valley Proteins, in February 2022, requesting that the court order Valley Proteins to comply with all permit terms and conditions. We also intervened in the Maryland Department of Environment’s (“MDE”) case against Valley Proteins in the Circuit Court of Maryland for Dorchester County. Both cases were stayed as CBF and partners met with Valley Proteins (which was recently acquired by Darling Industries) and MDE to discuss the terms of a proposed judicial consent decree (a legally binding agreement with the consent of all parties). On September 9, 2022, the parties reached agreement. The proposed Consent Decree requires Valley Proteins to pay $540,000 in civil penalties to the State of Maryland and provide $135,000 to CBF and partners for new Transquaking River monitoring and restoration work. The Consent Decree also requires Valley Proteins to conduct an investigation of potential sources of groundwater contamination at the facility, make improvements to stormwater management, and complete a plan to reduce odors emanating from the facility. The agreement also ensures enhanced oversight by MDE, CBF, and partners. The Consent Decree was filed with the Circuit Court for Dorchester County on September 12, 2022.
The company is seeking a renewal of its permit and plans to expand the facility. CBF is closely monitoring the permit application to ensure it prevents future pollution from harming the Transquaking River.
These cases are being handled by CBF’s Litigation Attorney Ariel Solaski.
Henrico County Water Reclamation Facility
United States District Court for the Eastern District of Virginia
Chesapeake Bay Foundation, Inc. et al. v. County of Henrico
Case No.: 3:21-cv-00752
Henrico County Water Reclamation Facility (“Henrico”), located about five miles southeast of Richmond, receives sewage for treatment from Henrico County and portions of the City of Richmond, Hanover County, Goochland County, and other industrial plants. Henrico has discharged and continues to discharge pollutants, sediments, and bacteria into the James River in violation of the Clean Water Act and exceeding the pollution limits in its Virginia Pollutant Discharge Elimination system (VPDES) permit. The Henrico wastewater plant has been subject to at least 40 violation notices and four different consent orders from the Virginia Department of Environmental Quality (“DEQ”).
As a result, on December 6, 2021, CBF and the James River Association who are represented by the Environmental Integrity Project, filed suit against Henrico County, the owner of the Facility, in the U.S. District Court for the Eastern District of Virginia to require the County to fix its failing sewage system and protect public health and the Chesapeake Bay. After suit was filed, Henrico filed a Motion to Dismiss our case and on April 11th, the Court issued a ruling denying the motion in part and granting it in part. The Court held that our claims against Henrico could proceed but barred our request for civil penalties under the Clean Water Act. Plaintiffs filed a Motion for Reconsideration of the Court’s ruling specifically related to whether the VA DEQ had “commenced” an enforcement action before litigation was initiated when it held a private meeting without public notice. The Judge again denied our Motion. However, the 4th Circuit Court of Appeals issued a decision in a similar case supporting our arguments on commencement. As a result, the Court issued an order on August 1st vacating its previous ruling from April 11th. A settlement conference was held on September 13th. At the settlement conference, the parties reached an agreement in principle and the case has been stayed until December 31, 2022.
This case is being handled by CBF’s Environmental Justice Staff Attorney Taylor Lilley, Litigation Attorney Ariel Solaski, and attorneys from the Environmental Integrity Project.
Waters of the United States (WOTUS)
United States District Court for the District of Maryland
Chesapeake Bay Foundation, et. al. v. United States Environmental Protection Agency
Case Nos. 1:20-cv-01063 (consolidated)
The Clean Water Act was designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To do this, the Act protects “navigable waters”—defined as “waters of the United States ”—from unregulated pollution and filling without a permit. However, because “waters of the United States” is not actually defined in the Clean Water Act, it has been subject to decades-long litigation and regulations attempting to clarify the definition. As a result, EPA and the U.S Army Corp of Engineers (Corps) collectively issued the 2015 Clean Water Rule. This Rule defined the wetlands and streams that qualify for federal protection under the Clean Water Act based on the connectivity of waters and the impacts streams and wetlands have on downstream water quality. Hundreds of streams and wetlands in the Chesapeake Bay watershed were protected under the 2015 Rule.
However, in a rejection of sound science and legal precedent, EPA and the Corps embarked upon a two-step process to repeal and replace the 2015 Clean Water Rule. First the agencies finalized a repeal of the Rule entitled Definition of “Waters of the United States”—Recodification of Pre-Existing Rules (Oct. 22, 2019). CBF filed comments prior to the issuance of this rule as the repeal would reinstate the prior confusing regulatory regime and remove protections for certain water features like Delmarva Bays and pocosins (a wetland bog with sandy, peat soil) found in the Bay region. Thereafter, the agencies issued the final replacement rule entitled The Navigable Waters Protection Rule: Definition of “Waters of the United States” (Apr. 21, 2020). CBF and more than 2,000 of our members submitted comments opposing the replacement rule, which ignores leading science on the biological connections between streams and wetlands and navigable waters. This rule eliminates Clean Water Act protection for hundreds of streams and wetlands across the watershed, meaning a pollution discharger would no longer need a federal permit to release pollutants into these waters. This reduces the ability to prevent and control pollution harmful to the Bay and its tributaries.
As a result, CBF, together with ShoreRivers, challenged both the repeal rule and the Navigable Waters Protection Rule by filing two separate actions in U.S. District Court against EPA and the Corps on April 27, 2020 asking the court to vacate both rules and to reinstate the 2015 Clean Water Rule. On Aug. 24th CBF’s cases were consolidated. CBF’s motion for summary judgment was filed on November 24th and Defendants reply and cross motion for summary judgment was filed on January 15, 2021. However, before final motions were filed, on February 2, 2021, the Court Ordered the cases to be held in abeyance until July 29, 2021 as EPA reviews the WOTUS Rule in accordance with President Biden’s Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which establishes a policy to listen to science and improve public health and protect our environment.
On August 30, 2021, in a separate, but related case, the U.S. District Court for the District of Arizona vacated the April 2020 Navigable Waters Protection Rule. In light of this decision, the EPA and Army Corps announced the agencies intent to abandon the Navigable Waters Protection Rule, and instead rely on the pre-2015 regulatory regime and guidance from Supreme Court cases. CBF submitted comments on the Agencies request for pre-proposal feedback on September 2, 2021 and we submitted comments on the Revised Definition of WOTUS on February 7, 2022.
CBF and ShoreRivers’ cases are currently held in abeyance pending publication of a Final Rule regarding the definition of WOTUS. We continue to monitor for the final rule and other developments. A new proposed rule is expected to be published in the fall of 2022.
On June 17, 2022, CBF joined 113 environmental organizations and submitted an amicus brief in a case pending before the U.S. Supreme Court, Sackett v. EPA, challenging whether wetlands are waters of the United States and protected by the Clean Water Act. Arguments were held on October 3rd in the U.S. Supreme Court.
This case is being handled by Vice President for Litigation Jon Mueller.
CLEAN WATER ACT PERMIT CHALLENGES
MARYLAND MS4 PERMITS
When it rains, stormwater washes excess nutrients, chemicals, and dirt from impervious surfaces, such as buildings, roads, and parking lots into local waters and the Chesapeake Bay. Municipal Separate Storm Sewer Systems (MS4s) permits are issued by the Maryland Department of Environment (“MDE”) to municipalities to ensure that stormwater pollution is regulated and to help reduce nutrient and sediment pollution pursuant to the Clean Water Act. CBF has worked with MDE for years on strengthening Phase I MS4 permits and have previously challenged prior Phase I MS4 permits in Maryland state courts (see concluded cases — Maryland MS4 permit challenges). Phase I permits are issued to jurisdictions with populations over 100,000 under the Clean Water Act’s National Pollution Discharge Elimination System (“NPDES”).
In November 2021, MDE issued new MS4 permits to Baltimore City and Baltimore County. However, these permits fail to acknowledge greater precipitation volumes from climate change, continue to allow best management practices that do not result in improvements to local water quality, and will directly impact the ability of Maryland to meet its Blueprint goals.
As a result, in December 2021, we filed petitions in the Circuit Court for Baltimore City and the Circuit Court for Baltimore County seeking review of these MS4 permits on behalf of Blue Water Baltimore, CBF, and our members, along with specific members whose properties are directly impacted by flooding and overflows of polluted stormwater. Both the City and County filed Motions to Dismiss our cases claiming that CBF and our members lacked standing (or an injury in fact) to bring the claim. After hearings were held in both cases, the City and County’s Motions to Dismiss were denied. A hearing on the merits was held in Baltimore City on August 18th and the court affirmed the MS4 permit issued to the City, denying our request for the MS4 permit to be remanded back to MDE for further consideration. CBF appealed this decision to the Maryland Court of Special Appeals on September 15th. A hearing on the merits is scheduled in Baltimore County on November 21.
These cases are being handled by CBF’s Director of Litigation Paul Smail.
Abingdon Business Park
Maryland Court of Special Appeals
Chesapeake Bay Foundation, Inc. v. CREG Westport I, LLC, et al.
Case No.: CSA-REG-1063-2020
On December 9, 2019, the Harford County Director of Planning and Zoning (“Planning Director”) approved a Forest Conservation Plan for Abingdon Business Park. The developer’s (CREG/Westport I, LLC) plan includes warehouse facilities and other mixed uses on approximately 330 acres of forested land in Harford County, Maryland. The site contains part of the Haha Branch stream, which drains into the Bush River and, ultimately, the Chesapeake Bay. The downstream Bush River is already classified as impaired for high levels of sediment from stormwater runoff. In addition, the Forest Conservation Plan permits the clearing of over 200 acres of forested land and the removal of 49 old and large trees known as “specimen trees.”
On January 8, 2020 CBF, together with nearby property owners, filed a Petition for Judicial Review with the Circuit Court for Harford County contesting the Planning Director’s decision to approve the forest conservation plan. We allege it does not meet the requirements of the Harford County Zoning Code. The County and the Developer together filed a Motion to Dismiss the Petition in March of 2020 and CBFs filed an opposition. After a hearing was held, the Court granted the Motion to Dismiss holding that the forest conservation plan was not a “final decision” and therefore does not provide Petitioners with the ability to appeal it. CBF believes that this decision is inconsistent with state law. We filed an appeal to the Maryland Court of Special Appeals on November 20. Oral Arguments were held virtually on June 14, 2021, and on September 8, the appellate court issued an Opinion affirming the decision of the circuit court and ruled that the forest conservation plan was not a “final decision” subject to appeal.
We filed a Petition for Certiorari with the highest court in Maryland, the Maryland Court of Appeals, asking the court to review this decision. The Court granted our petition and on August 26th after briefing and arguments were held, the court subsequently ruled in our favor and reversed the prior decisions. The court held that we could appeal the forest conversation plan and that forest conservation plans for development projects can be legally challenged after being approved. This decision has far-reaching implications for forest conservation in Maryland and will give forests the same legal protections as wetlands and waterfront lands in Maryland. Our case will now be heard on the merits in the Circuit Court for Harford County on the decision to allow the destruction of specimen trees and large swaths of contiguous forest.
See CBF’s press statement on this landmark decision.
Also, on June 29th, the Harford County Department of Public Works issued a grading permit for the Abingdon Business Park Development, even though our appeal of the Forest Conservation Plan was still pending. Issuing the grading permit allows the developer to begin clearing forest land and specimen trees. As a result, CBF filed an appeal of the grading permit, and we filed a Motion for Temporary Restraining Order and Preliminary Injunction with the Circuit Court for Harford County to stop any further tree removal. The County filed a Motion to Dismiss our appeal of the grading permit and the court denied our request for the temporary restraining order. We filed a renewed request after the Maryland Court of Appeals found in our favor and provided additional evidence regarding the irreparable harm that would be caused by further tree removal. The Court granted our request for a temporary restraining order on all tree clearing at the site. The parties have reached a mutual agreement whereby the developers are enjoined from further cutting of trees associated with the Abingdon Business Park until the resolution of CBF’s initial Petition for Judicial Review of the Forest Conservation Plan originally filed on January 8, 2020. A briefing and hearing schedule will be issued in the Circuit Court for Harford County.
This matter is being handled by CBF Director of Litigation Paul Smail.
Conowingo Dam Relicensing
United States Court of Appeals for the D.C. Circuit
Waterkeepers Chesapeake, et al., v. Federal Energy Regulatory Commission
Case No.: 21-1139 (consolidated)
Since its construction in 1928, the Conowingo Dam, owned and operated by Exelon, on the Susquehanna River in Maryland has been trapping sediment and phosphorus pollution in the reservoir behind the structure. Today the reservoir is almost completely filled and, as a result, has lost much of its capacity to trap sediment and nutrients. In particular, during heavy rainstorms when the flow through the dam is high, these sediments are scoured from the reservoir and released into the river below. This results in a high amount of pollution flowing into the Bay in a short period, rather than gradually, which can overwhelm the Bay and fuel algal blooms that cause dead zones devoid of oxygen in the Bay.
CBF has a long legal history of involvement with the Conowingo Dam beginning in August 2013 when we first intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam, provided comments on FERC’s Draft Environmental Impact Statement (DEIS), and Exelon’s Section 401 Water Quality Certification application with the State of Maryland. Eventually MDE issued its Certification on April 27, 2018, requiring Exelon to account for and reduce the amount of nitrogen and phosphorus discharged through the dam due to the inability of the dam to continue trapping these pollutants. In response to MDE’s certification, Exelon filed Judicial actions against MDE in May 2019 in both Maryland state court and federal court. CBF filed Motions to Intervene in both cases to ensure that the proper administrative process was followed and defend the State of Maryland’s authority to certify and condition discharges that would otherwise harm water quality.
However, prior to the cases being litigated, the State of Maryland filed a Settlement Agreement with FERC that would resolve all of Exelon's judicial and administrative appeals. The settlement required Exelon to invest approximately $200 million adjusted for inflation over the 50-year license agreement term for environmental benefit projects, while not admitting any responsibility or liability for pollution scoured and discharged from the dam during high river flow events such as storms. On January 17, 2021, CBF filed comments on the Settlement Agreement with FERC urging the commission to reject the proposed settlement offer. However, on March 19, 2021, FERC issued an Order granting a new 50-year license to Exelon without imposing any conditions on the operation of the Dam that would mitigate its impact to downstream water quality.
CBF, along with our partners Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, and ShoreRivers who are represented by Earthjustice, filed a request for a rehearing of FERC’s March 19th Order. After FERC denied our request, we filed a Petition for Review with the United States Court of Appeals for the D.C. Circuit on June 17, 2021, requesting the Court review FERC’s Order to issue the new license and a 2nd Petition for Review on September 13th based on FERC’s Order on our rehearing request. Arguments are scheduled in the D.C. Circuit Court on October 11th.
This matter is being handled by CBF Director of Litigation Paul Smail.
Dominion Atlantic Coast PipelineUpdated: 9/15/2021
On July 5, 2020, Dominion Energy and Duke Energy, the developers of the Atlantic Coast Pipeline, announced they were abandoning the project designed to carry natural gas 600 miles through West Virginia, Virginia, and North Carolina. CBF was one of many advocates and litigants fighting to stop the pipeline due to the unprecedented risk the pipeline would present to people, waterbodies and forests in Virginia. Our victory in the Fourth Circuit Court of Appeals revoking an air pollution permit that would have allowed the construction of a gas burning compressor station in a Buckingham County minority community was one of the factors contributing to the demise of the project. CBF’s Statement on Cancellation of Atlantic Coast Pipeline
As required by the Federal Energy Regulatory Commission (“FERC”), Dominion submitted a Restoration Plan on December 16, 2020. The plan outlines the steps Dominion will take to restore the areas where construction had begun. CBF continues to monitor the FERC proceedings and will take appropriate action, if necessary, to ensure adequate restoration projects are completed including areas where trees have been removed, farm fields have been paved for staging yards, waterbodies where pipes have been installed, and where endangered species habitat has been destroyed.
The Atlantic Coast Pipeline ("ACP") is an expansive operation spanning the distance of more than 600 miles from the Allegheny Mountains through North Carolina, including streams, rivers and wetlands in the Chesapeake Bay watershed throughout Virginia. More than 21 miles of line will cross national forest lands in Virginia and West Virginia. In addition, the proposed pipeline would have generated additional sediment and nutrients, resulting in an unprecedent risk to these waterbodies, as well as wetlands and forests in the Chesapeake Bay watershed. Forests are vital to the health of the Bay as they prevent pollution from entering waterways, protect clean air, and provide habitat to wildlife throughout the region. Thousands of acres of forests will be destroyed to construct the pipeline.
Challenge to Certificate of Public Convenience and Necessity
United States Court of Appeals for the District of Columbia Circuit
Atlantic Coast Pipeline, et. al. v. Federal Energy Regulatory Commission
Case No.: 18-1224
In October 2014, Atlantic and Dominion were granted approval for pre-filing review of the proposed Atlantic Coast Pipeline project by the Federal Energy Regulatory Commission ("FERC"). FERC reviews applications for construction and operation of interstate natural gas pipelines under Section 7 of the Natural Gas Act. In February 2015, FERC published a Notice of Intent to prepare an Environmental Impact Statement (EIS) and requested public comments. CBF along with other organizations filed comments and motions to intervene to protest the proposed pipeline project. In September of 2015, Atlantic and Dominion filed applications with FERC for certificates of public convenience and necessity. This certificate is required for the construction or expansion of natural gas facilities used for the sale or transportation of natural gas and must be issued by FERC, along with the EIS.
Despite the significant environmental impacts associated with the proposed pipeline, FERC issued the final EIS on July 21, 2017 and issued an Order granting the certificate of public convenience and necessity on October 13, 2017 without considering relevant evidence in the record.
On November 13, 2017, CBF and our partners filed a Petition with FERC requesting a rehearing and a stay of the Certificate’s Order, which would pause pipeline construction while the review was being completed. However, rather than ruling on the rehearing request, FERC indefinitely postponed a ruling without issuing a stay while construction of the pipeline was underway. This allowed construction to proceed even though a request for reconsideration was pending. As a result, in March of 2018, CBF and our partners filed a Petition with the Fourth Circuit Court of Appeals asking the Court to stay construction of the Pipeline until FERC issued a final Order on the November 13th rehearing request. The 4th Circuit Dismissed the Petition for lack of jurisdiction and in August of 2018 FERC denied our rehearing request.
After FERC denied the rehearing request, CBF and our NGO partners filed a Petition for Review with the U.S. Court of Appeals for the 4th Circuit requesting the Certificates Order be vacated. Our case was transferred to the D.C. Circuit Court of Appeals and consolidated with an appeal filed by ACP related to FERC’s Certificates Order on construction funding. Briefing was completed and the oral arguments scheduled for October 16, 2019 were removed from the court docket and the case held in abeyance until the United States Supreme Court ruled on a separate matter regarding the Atlantic Coast Pipeline and a special use permit authorizing the construction of the pipeline through parts of the Appalachian Trail and George Washington and Monongahela National Forests, Atlantic Coast Pipeline, et. al. v. Cowpasture River Preservation Association. In June of 2020, the Supreme Court ruled in favor of ACP in this case overturning the 4th Circuit decision vacating the permit issued by the U.S. Forest Service.
On July 23, 2021, FERC made available for public comment a draft Supplemental Environmental Impact Statement for the proposed restoration project. On September 13, CBF joined our NGO partners and filed comments on this restoration plan urging FERC to make revisions and address shortcoming, including how tree removal will occur around wetlands and waterbodies. CBF’s case remains held in abeyance, even after the abandonment of the project, until the company’s restoration plan is completed and finalized with FERC. The parties continue to file status reports, with the Court, every 90 days until the restoration plan and case is concluded.
Water Quality Certification
United States Court of Appeals for the Fourth Circuit
Chesapeake Bay Foundation, et al. v. State Water Control Board, et. al.
Case No.: 18-1077
The Virginia Department of Environmental Quality is responsible for ensuring that the proposed project complies with all state water quality standards, including obtaining a section 401 water quality certification as defined in Section 401 of the Clean Water Act, 33 U.S.C. § 1341(a). Section 401 certification process requires states to assess whether a federal-permitted project, that discharges into the states navigable water, violates the state's water quality standards.
The Commonwealth of Virginia's Department of Environmental Quality ("DEQ") and the Virginia State Water Control Board issued the 401 Water Quality Certification to ACP on December 20, 2017. CBF along with local co-plaintiffs filed a Petition for Review of this decision with the United States Court of Appeals for the Fourth Circuit located in Richmond, VA on January 19, 2018. CBF and our co-plaintiffs allege that DEQ and the Water Control Board lacked sufficient information to find "reasonable assurance" that the proposed ACP would not violate state water quality standards, as required by Section 401 of the Clean Water Act. In addition, the certification was issued without providing adequate public notice and comment opportunities throughout the certification process.
CBF's case was consolidated with an appeal filed by Southern Environmental Law Center ("SELC") representing several organizations, including Appalachian Voices, Sierra Club, and Chesapeake Climate Action Network. Arguments were held on September 28, 2018 in the 4th Circuit Court of Appeals located in Richmond, Virginia and on January 14th, in a published opinion, the Court denied the joint petition for review and upheld the water quality certification issued for the Atlantic Coast Pipeline.
Buckingham County Compressor Station
United States Court of Appeals for the Fourth Circuit
Friends of Buckingham, et. al. v. State Air Pollution Control Board, et. al.
Case No.: 19-1152
Dominion applied for a permit to construct and operate a natural gas compressor station in Buckingham County, VA for the Atlantic Coast Pipeline. The permit would allow the new source to emit greenhouse gases, nitrogen oxides, and other toxic pollutants into the atmosphere, harming air quality and public health in violation of the Virginia State Constitution. In addition, the community where the compressor station would be built is a historic African American community raising environmental justice issues. CBF submitted comments on the proposed permit and testified at the hearing before the Virginia Air Pollution Control Board on November 8, 2018. After allowing for additional public comments related to demographics and site suitability, the Board voted 4-0 to approve the air permit on January 8th. Issuance of the permit violates the state clean air law because the board improperly considered a state statute requiring the board to determine the suitability of the site for the compressor station given that is being placed in a minority community.
As a result, on February 8th, CBF and SELC (representing Friends of Buckingham) filed a Joint Petition for Review with the 4th Circuit Court of Appeals. Oral arguments were held on October 29, 2019. On January 7, 2020, the 4th Circuit issued a Published Opinion vacating the Permit and remanding the case back to the Virginia Air Pollution Control Board. The Court held that the Board did not perform its statutory duty to determine whether the facility is suitable for this site, in light of environmental justice and potential health risks for the people of Union Hill.
These cases are being handled by Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel for the Southern Environmental Law Center.