CLEAN AIR ACT CHALLENGES
EPA’s Federal Good Neighbor Plan for the 2015 Ozone Standards
United States Court of Appeals for the D.C. Circuit
State of Utah, et al. v. United States Environmental Protection Agency
Case No.: 23-1157 (and consolidated cases)
On June 5, 2023, U.S. EPA issued a rule entitled the “Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality Standards” (“Good Neighbor Rule”). The Rule requires 23 upwind states to reduce contributions to ground-level ozone (or smog) pollution under the 2015 federal ozone standards by setting limits on nitrogen oxide (NOx) pollution emitted from power plants and other industrial facilities in those states. When NOx is emitted into the air, the gas undergoes a chemical reaction whereby a percentage falls from the air, onto land and water as nitrogen, and some combines with other gases to form ground-level ozone. Ground-level ozone pollution seriously harms public health and the environment.
The Clean Air Act’s “Good Neighbor Provision” requires each state to ensure that its air pollution will not interfere with the National Ambient Air Quality Standards (NAAQS) in downwind or neighboring states. Since NOx pollution travels across state lines, downwind states are burdened by poor air quality caused, in part, by emissions from upwind states, and this interstate pollution interferes with downwind states’ ability to meet the federal ozone standards.
Challenges to the Rule were filed in various federal courts by states and industry groups beginning in June of 2023. Because EPA’s Plan will reduce nitrogen deposition to the Chesapeake Bay watershed and improve air quality and the health of Bay communities, including those most directly impacted by ozone nonattainment and local sources of pollution, CBF joined a coalition of national environmental and public health groups and intervened in the D.C. Circuit litigation in support of EPA’s Good Neighbor Rule. The D.C. Circuit case is ongoing as of September 2023. The state and industry petitioners have requested a stay of the Final Rule pending the outcome of the current Litigation. CBF and the environmental and public health intervenors have filed a Motion opposing this request.
CBF is represented in the case by Litigation Staff Attorney Ariel Solaski and counsel from Earthjustice.
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 EPA and NHTSA’s regulations. NHTSA issued a final rule repealing its portion of SAFE Part One in December 2021 and 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 pending four separate legal challenges to EPA’ s 2022 action reinstating California’s waver- consolidated under the lead case, Ohio v, EPA, No, 22-1081. CBF continues to monitor these legal challenges as their outcome will determine the next steps in the stayed litigation.
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 the Part Two 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 would have resulted 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, in May of 2020 CBF joined a coalition of public interest groups to challenge the Part Two Rule in the D.C. Circuit by filing petitions for review of both NHTSA’s and EPA’s actions. The petitions were 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 reviewed the Rule. CBF joined coalition comments on both EPA and NHTSA’s proposals to reconsider and revise SAFE Part Two. 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 Two and issued a final rule strengthening fuel economy standards.
However, legal challenges were filed to EPA’s new standards and the consolidated cases remain in abeyance pending the resolution of these challenges.
CBF is represented in these cases by 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 (ACE) 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 ACE Rule would have been an ineffective replacement, requiring few, if any, emission reductions, and ultimately leading to an increase in greenhouse gas emissions.
The ACE Rule would have been harmful to the health of the Chesapeake Bay by contributing to the devastating impacts of climate change and allowing an increase in nitrogen oxide (NOx) pollution emitted from power plants.
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 August 30, 2019, challenging both the Repeal of the Clean Power Plan and the implementation of the ACE Rule. CBF’s case was consolidated with appeals filed by NGO groups, energy organizations, and states. CBF also intervened in an appeal brought by energy organizations who are challenging EPA’s authority to regulate 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 climate change, on January 19, 2022, the D.C. Circuit issued an Opinion vacating the ACE Rule and directing 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 Clean Air Act. 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, urging the Court not to hear the case, 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 ample 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 D.C. Circuit.
In May 2023, EPA published a proposed regulation regarding carbon emissions from new and existing power plants and also repealing the ACE Rule. CBF joined a coalition of climate and environmental organizations and submitted comments in favor of EPA’s proposed regulation. The coalition urged EPA to finalize a strong and timely rule to fulfill its statutory requirement under the Clean Air Act to protect the health and welfare of Americans from climate pollution. The consolidated cases before the D.C. Circuit continue to be held in abeyance pending the final rulemaking and any challenges that may occur.
CBF is represented in this case by 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. 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 currently held in abeyance as the EPA reviews the PM NAAQS Rule in accordance with Executive Order 13990. On January 27, 2023, EPA published in the Federal Register a notice of its proposed action reconsidering the Particulate Matter NAAQS standards. CBF joined a coalition of environmental nonprofit organizations and filed a comment letter calling for the EPA to implement a strengthened version of its proposed rule. We continue to monitor EPA’s review and rulemaking process.
CBF is represented in this case by 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 when pollutants (including nitrogen oxides) 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, also contribute to excess nitrogen pollution in the watershed, which leads to harmful algae blooms that keep sunlight from reaching underwater grasses and 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 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 was 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.
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. The Committee provided its final report to the EPA Administrator on June 9, 2023.
We continue to monitor EPA’s review and rulemaking process as our case remains in abeyance.
CBF is represented in this case by Litigation Staff Attorney Ariel Solaski.
CLEAN WATER ACT PERMIT CHALLENGES
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
Trappe East Holdings Business Trust (Trappe East) 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.
In February 2021 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. CBF's legal challenge was stayed as the permit was remanded back to MDE for further consideration. After MDE held a public hearing and additional comments were submitted, on October 27, 2022, a revised groundwater discharge permit for the facility was issued. CBF filed an amended petition for judicial review in December 2023 because our concerns with the discharges of pollutants from the facility remained. On August 10, 2023, a hearing was held in the Circuit Court and on August 29th the Court issued a decision upholding the permit issued by MDE.
The revised permit is legally deficient and does not guarantee zero net discharge of nutrient pollution. Nor does it account for the discharge of pollutants to the nearby waterbodies in accordance with federal and state law. CBF has appealed this decision to the Appellate Court of Maryland.
CBF is represented in this matter by the Vice President of Litigation, Paul Smail
Valley Proteins Discharge Permit Challenge
Circuit Court of Maryland for Dorchester County
In Re: Petition of Chesapeake Bay Foundation, Inc., et al.
Case No.: C-09-CV-23-000096
Valley Proteins is a poultry rendering facility in Linkwood, on Maryland’s Eastern Shore that converts slaughter waste (feathers, skin, blood, fat, bones, etc.) into proteins for resale, waste sludge, and treated wastewater. The Facility processes an average of 3.64 million pounds of raw material each day of operation. The wastewater produced at the Valley Proteins’ facility discharges into the Transquaking River, which drains into Fishing Bay and then the Chesapeake Bay.
There have been longstanding water quality discharge problems associated with Valley Proteins. In 2022, CBF and partners joined a consent decree, along with Maryland Department of the Environment (MDE) and the facility, to settle a legal challenge against the facility for violations of its wastewater discharge permit, which had been administratively extended for more than 15 years. The Consent Decree settling that case addresses past violations of the facility’s prior permit. (See CBF’s Concluded Case Shore Rivers, et al. v. Valley Proteins)
The Clean Water Act and the Maryland Water Pollution Control law prohibit the discharge of a pollutant into waters of the United States and Maryland without a permit to do so. These permits specify the amounts of pollutants that may be discharged from a facility into waterbodies, along with monitoring, reporting, and other conditions. In January 2023, MDE finalized a renewed discharge permit for Valley Proteins that failed to address significant flaws, including inadequate and delayed strengthening of standards from the prior permit, despite consistent water quality problems in the Transquaking River watershed. The insufficient permit means MDE will not be able to ensure compliance with water quality standards as required by federal and State law.
Accordingly, CBF, on behalf of itself and four local environmental partner groups (Dorchester Citizens for Planned Growth, Friends of the Nanticoke River, ShoreRivers, and Wicomico Environmental Trust), filed a petition for judicial review in Dorchester County Circuit Court asking the court to review the water quality discharge permit issued to Valley Proteins. The matter has been fully briefed, and a court hearing is scheduled for November 2, 2023.
CBF is represented in this matter by Ariel Solaski, Paul Smail, and Sheronda Rose.
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. Hearings on the merits were held in the respective Circuit Courts for Baltimore City and Baltimore County and both courts affirmed the MS4 permits issued by MDE and denied our request for the permits to be remanded back to MDE for further consideration. CBF appealed these decisions to the Appellate Court of Maryland (formally the Maryland Court of Special Appeals) and the two cases were consolidated for briefing and arguments. The case is fully briefed, and arguments are scheduled for October 11, 2023.
CBF is represented in this matter by the Vice President of Litigation Paul Smail and Litigation’s Environmental Justice Staff Attorney Taylor Lilley.
Maryland Industrial Stormwater General Permit
Circuit Court of Maryland For Baltimore County
Petition of Chesapeake Bay Foundation
In the Matter of the General Permit for Discharges of Stormwater Associated with Industrial Activity
Case No.: C-03-CV-22-005075
Stormwater runoff is one of the primary causes of pollution in the Chesapeake Bay region. As rainfall events become more frequent and intense, the runoff from impervious surfaces carries harmful pollutants into local waterways and the Chesapeake Bay. With climate change increasing the amount of rainfall, the runoff of toxic stormwater will continue to increase as well. The Maryland Department of the Environment (MDE) issues general permits to ease MDE’s burden of permitting multiple facilities within the same industry, such as the construction and industry sectors that can prevent the release of pollutants by implementing basic requirements in the permit. General permits are necessary to prevent pollution from flowing directly from these facilities into the surrounding neighborhoods before washing through storm drains and eventually into local waterways.
On November 18, 2022, MDE issued the Industrial Stormwater General Permit 20SW authorizing discharges of stormwater associated with industrial activity to the waters of the state of Maryland. The prior permit was issued in 2014 and expired in 2018. This permit covers industrial facilities, including scrap yards, auto yards, coal handing facilities, and landfills.
This permit fails to consider the impacts of climate change, lacks measurable pollution limits that are consistent with the Chesapeake Bay TMDL, and does not require permit holders to conduct sampling and monitoring of pollution levels. Also, many of the facilities the permit will govern are clustered in neighborhoods identified as environmental justice communities that are already threatened by multiple pollution sources.
On December 16, 2022, CBF filed a Petition for Judicial Review in the Circuit Court for Baltimore County, on behalf of itself and its members requesting the Court reverse the decision of MDE and remand the permit back to the agency for further consideration as it is flawed and does not comply with state law or the federal Clean Water Act. Similar, but separate, Petitions were filed by the Chesapeake Legal Alliance and the Environmental Integrity Project. The litigation is currently stayed as MDE voluntarily agreed to a limited remand to allow for additional public comments related specifically to (1) the “no exposure” certification, which allows certain facilities to exempt themselves from the permit requirements if they attest that stormwater will not be exposed to pollutants; (2) a requirement for permittees to address climate change by updating their stormwater pollution prevention plans to account for new information and experiences with major storm events; and (3) a reporting provision applicable to facilities located in environmental justice communities that fails to require additional monitoring or compliance. A public hearing before MDE was held on September 28, 2023 and written comments are being accepted through November 25, 2023.
CBF is represented in this matter by Litigation Staff Attorney Sheronda Rose.
Abingdon Business Park
Appellate Court of Maryland
Chesapeake Bay Foundation, Inc. v. CREG Westport I, LLC, et al.
Case No.: CSA-REG-1063-2020
Forest Conservation Plan
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 alleged that it did 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 did not provide Petitioners with the ability to appeal. CBF believed that this decision was inconsistent with state law. We filed an appeal to the Appellate Court of Maryland (formally the Maryland Court of Special Appeals). 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 Supreme Court of Maryland (formally 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 CBF 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.
See CBF’s press statement on this landmark decision.
Our initial Petition challenging the Forest Conservation Plan was then heard on the merits in the Circuit Court for Harford County in January 2023. On May 10, 2023, the Court ruled in our favor and found that Harford County did not provide a factual basis for granting a waiver from the requirements of the Forest Conservation Act to clear the specimen trees and remanded the Forest Conservation Plan back to the County for further review. This is another major victory for citizens to ensure that the Forest Conservation Act can be used to protect important forested land and the significant mature specimen trees. The developers have since appealed this decision to the Appellate Court of Maryland.
While our appeal of the Forest Conservation Plan was pending, the Harford County Department of Public Works issued a grading permit for the Abingdon Business Park Development. Issuing the grading permit allowed the developer to begin clearing forest land and specimen trees. CBF filed an appeal of the grading permit, 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. After the court denied our request for the temporary restraining order, we filed a renewed request when the Maryland Court of Appeals found in our favor in the Forest Conservation matter, and we 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 reached a mutual agreement whereby the developers were enjoined from further cutting of trees associated with the Abingdon Business Park until the final resolution of CBF’s initial Petition for Judicial Review of the Forest Conservation Plan. This matter has been stayed pending appellate court review.
CBF is represented in this matter by the Vice President of Litigation Paul Smail.
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.
CBF was represented in these cases by the former Vice President for Litigation Jon Mueller, staff counsel in the Virginia office, and counsel for the Southern Environmental Law Center.