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CLEAN AIR ACT CHALLENGES

MARYLAND AND DELAWARE CLEAN AIR ACT SECTION 126 PETITIONS

MERITS CASE
United States Court of Appeals for the District of Columbia Circuit
State of Maryland, et. al. v. United States Environmental Protection Agency, et. al.
Case No.: 18-1285

Updated: 5/1/2019

Maryland suffers from high concentrations of ground level ozone or smog largely due to the pollution emitted from coal fired power plants (electric generating units) located in upwind states. The CAA includes a "Good Neighbor Provision" requiring each state to ensure that its air pollution will not interfere with the air quality standards in downwind or neighboring states. The State of Maryland submitted a petition to EPA requesting that EPA make a formal finding that the air pollution from 36 power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia are emitting air pollutants in violation of the provisions of the CAA and are significantly contributing to States inability to meet the federal ground level ozone standard thereby creating a human health hazard. The State of Delaware submitted four additional petitions to EPA.

EPA published a Notice in the Federal Register on October 5, 2018 denying the petitions. As a result, CBF and our partners, Adirondack Council, Chesapeake Climate Action Network, Clean Air Council, Environmental Defense Fund, Environmental Integrity Project, Physicians for Social Responsibility and Sierra Club appealed this decision by filing a Petition for Judicial Review with the D.C. Circuit Court of Appeals on October 19. CBF's case was consolidated with appeals filed by Maryland and Delaware. Utility Air Groups have filed Motions to Intervene on behalf of Defendant EPA while the States of New Jersey and New York and the City of New York have intervened on behalf of Petitioners. Petitioner's (CBF) filed their opening briefs on March 29, 2019 and Respondent EPA's brief is due on June 26. CBF and our co-Petitioners will file a reply brief by the September 9th deadline. Oral Arguments have not been scheduled.

This case is being handled by litigation staff attorney Ariel Solaski, Vice President for Litigation Jon Mueller, and counsel for the other environmental groups.

 

OZONE AND GOOD NEIGHBOR OBLIGATIONS

United States Court of Appeals for the District of Columbia Circuit
State of New York, et. al. v. United States Environmental Protection Agency
Case No.: 19-1020
Updated: 5/1/2019

Ozone transported from upwind states combines with emissions from local sources and produces elevated ozone levels. Breathing ozone in excess can cause respiratory illness and even early death for those at risk, including people with asthma, children, older adults and people who spend time outdoors.

In 2016, EPA issued the Transport Rule, also called the Cross-State Air Pollution Rule (CSAPR) Update, for the 2008 Ozone National Ambient Air Quality Standards (NAAQS) to partially address interstate pollution that significantly contributes to ground-level ozone or smog in downwind states. The Clean Air Act (CAA) requires EPA to establish and revise NAAQS for ozone. States then submit a state implementation plan (SIP) to ensure they are meeting the standards established by EPA. Each state is also responsible for ensuring that its emissions, when transported downwind, do not prevent other states from attaining these standards and meet good neighbor provisions in the CAA. EPA acknowledged that the 2016 CSAPR Update did not provide remedy for the downwind states who were not meeting the established standards from ozone being transported from upwind states.

However, in a final rulemaking published in the Federal Register on January 30, 2019, EPA proposed that no further reductions in interstate pollution are required and the existing CSAPR Update fully addresses the CAA's good neighbor provision for ozone. To compel EPA to address downwind ozone pollution reduction, CBF and our partners, Downloaders at Risk, Appalachian Mountain Club and Sierra Club, filed a Petition for Review with the D.C. Circuit on January 30th. Our case has been consolidated with similar appeals filed by State Petitioners. Due to a request for an expedited briefing schedule, Petitioner's (CBF) opening brief was filed on April 19th while Respondent EPA's brief is due on June 14th. CBF and our co-Petitioners will file a reply brief by the July 11th deadline. Oral Arguments have not been scheduled in this case.

This case is being handled by litigation staff attorney Ariel Solaski, Vice President for Litigation Jon Mueller, and counsel for the other environmental groups.

 

MERCURY POLLUTION

U.S. Court of Appeals for the D.C. Circuit
White Stallion Energy Center, et al. v. EPA
Case No.: 12-1100
Updated: 5/1/2019

Since 2005, CBF has successfully partnered with other organizations in court to require stringent controls on coal-fired power plants to reduce air borne pollution.  In collaboration with others, CBF’s legal actions led to the creation of federal regulations, called the Mercury and Air Toxics Standards (MATS), which are designed to limit the emission of mercury and other toxic air pollutants. The reduction of airborne mercury will reduce the amount of mercury present in fish found within the Chesapeake Bay watershed and protect brain development in children, among other things. However, the MATS have been repeatedly challenged in court by the electric generating industry and some states. While those actions have been defeated in the lower courts, the challengers 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. Unfortunately, the petition was granted and the case was heard by the Supreme Court on March 25, 2015, to consider whether EPA should have evaluated the costs of the new rule versus the benefits to human health and the environment before it decided to develop the regulations.

On June 19, 2015, in a 5-4 decision, the United States Supreme Court ruled against EPA and remanded the case back to the United States Court of Appeals for the D.C. Circuit for review of the economic impacts of the rule. The Supreme Court found EPA should have considered industry's costs to comply with the standards before it developed the rule. Michigan, et. al. v. EPA, 135 S.Ct 2699 (2015) This, despite the fact that EPA did consider those costs after deciding that mercury and other hazardous pollutants emitted by power plants presented a significant health risk requiring regulation.

After the case was remanded, the National Mining Association and other parties asked the court to throw the standards out. On December 15, 2015, the D.C. Circuit rejected this attempt and remanded the proceedings to EPA without vacating the Mercury and Air Toxics Standards final rule. Undeterred, on March 14, 2016, the coal-industry allied states filed another Petition for Writ of Certiorari with the United States Supreme Court. The Petitioners requested the Court review the D.C. Circuit Court's decision not to vacate the MATS rule. CBF joined the Intervenor's Brief in Opposition to the Petition on April 13th. On June 13th, the United States Supreme Court denied the industries Petition and the case continued in the Circuit Court.

EPA completed its economic analysis supporting the rule and on April 25, 2016, submitted its Supplemental Findings in response to Michigan v. EPA. A day later, Murray Energy and other industry groups filed a petition seeking review of EPA's findings in the United States Court of Appeals for the D.C. Circuit. CBF and other environmental groups and organizations filed a Motion For Leave to Intervene opposing the petition. Our Motion to Intervene was granted on August 3, 2016.

Oral Arguments were scheduled for May 18, 2017 in the United States Court of Appeals for the D.C. Circuit. However, the government moved to hold the case in abeyance while it reconsidered its position supporting the Supplemental Findings. As expected, on February 7, 2019, EPA published proposed revisions to MATS in the Federal Register. The proposed rule changes how EPA considers the costs and benefits of the Standards and determined that regulating hazardous air emissions from coal-and oil-fired electric utility steam generating units is not "appropriate and necessary."

On April 17, 2019, CBF joined other non-government organizations and filed comments in opposition to the MATS revisions. CBF also submitted separate Comments focusing on how EPA's proposal would increase mercury emissions within the Chesapeake Bay airshed, thereby increasing the amount of mercury in watershed fisheries and a health risk to individuals who consume contaminated fish. In addition, EPA's current proposal conflicts with the toxics reduction goal of the 2000 Chesapeake Bay Agreement and Section 117(g) of the Clean Water Act as there would be an increase in toxic emissions from coal-and oil fired power plants.

CBF and our partner groups will continue to monitor EPA's attempt to rescind the rule and will take appropriate action to protect the rule already in place as the majority of affected power plants are currently in compliance with reducing mercury and air toxics.

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

 

 

HYDROPOWER

 CONOWINGO DAM RELICENSING

Federal Energy Regulatory Commission
Project No.: P-405-106
Updated: 5/1/2019

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

In August 2013 CBF intervened in the Federal Energy Regulatory Commission’s (FERC) relicensing proceedings for the dam. Intervention ensures CBF’s voice is heard in the process, and positions CBF for a legal challenge if necessary. CBF has provided comments on FERC’s Draft Environmental Impact Statement (DEIS). FERC issued the Final EIS on March 11, 2015 recommending the relicensing of all three projects (Conowingo, Muddy Run, and York Haven) with certain modifications and additional measures. FERC will decide whether to issue a license after Exelon conducts a sediment study and after the Maryland Department of the Environment ("MDE") issues a Water Quality Certification for the projects under Section 401(a)(1) of the Clean Water Act. On May 17, 2017, Exelon’s submitted their application for a Water Quality Certification. CBF filed comments on the application on August 23, 2017 detailing the impacts of the Dam on Maryland's water quality and the achievement of the water quality standards associated with the Chesapeake Bay TMDL for nutrients and sediments.  CBF also presented oral comments during a public hearing held on December 5, 2017 and filed additional comments on January 16, 2018. 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 two judicial actions against MDE on May 25th. One action was a Complaint for declaratory and injunctive relief filed in the U.S. District Court for the District of Columbia and a similar action was filed in the Baltimore City Circuit Court. Both Complaints essentially asked the court to Order MDE to withdraw their Certification as the requirements exceed the State's authority under the CWA and violate the United States Constitution. Exelon also lodged a "Protective Provision and Administrative Appeal" with MDE requesting the Department reconsider and stay its decision.

By filing these judicial actions, Exelon is attempting avoid the appropriate administrative proceedings and appeals process. Maryland law provides that a person aggrieved by the Department's decision concerning the Certification must first file, in writing, a reconsideration with MDE, then a final decision can be appealed to an administrative hearing officer, not in federal or state court. CBF filed Motion to Intervene in both cases to ensure the proper and established process for challenging the Certification will be met.  MDE filed Motions to Dismiss in both cases as well. The Circuit Court for Baltimore City granted MDE's Motion on October 9, 2018 and dismissed Exelon's Complaint before ruling on CBF's intervention. Exelon then filed a Notice of Appeal with the Maryland Court of Special Appeals. The State of Maryland and Exelon have agreed to mediation in this case.

However, the U.S. Court of Appeals in D.C denied CBF's Motion to Intervene on March 29th stating that the State of Maryland adequately represents CBF's interests. The Court heard arguments on MDE's Motion to Dismiss pertaining to venue on February 28th and a hearing on the remainder of MDE's arguments is scheduled for June 19th. CBF appealed the denial of its Motion to Intervene with the U.S. Court of Appeals for the D.C. Circuit on April 29th.

In the meantime, Exelon also filed a Petition for Declaratory Order with FERC on February 28th seeking a declaration that the State of Maryland waived its right to issue the water quality certification for the Conowingo project because it failed to timely act on Exelon's request to issue the Certification under Section 401 of the CWA 33 U.S.C.§ 1341(a)(1). CBF moved to intervene in this proceeding to position for a further legal challenge, if necessary.

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

 

 

MARYLAND CRITICAL AREA CASES

Anne Arundel County Board of Appeals
In the Matter of Joseph Baldwin and Colleen Baldwin
Case No.: BA 72-18V
Updated: 5/1/19

In November of 2018, an Anne Arundel County Administrative Hearing Officer granted a variance to allow the demolition and removal of a one-story dwelling and construction of a new dwelling, pool and detached garage on property located entirely within the critical area on Round Bay and Hopkins Creek off the Severn River in Annapolis, Maryland. In addition, the new dwelling would be located within an expanded buffer and the property is surrounded on three sides by steep slopes of 25 percent or greater increasing the potential for erosion after development. CBF filed an appeal of this decision on December 7, 2018 as the decision of the Hearing Officer is arbitrary and capricious, and not in accordance with state law or the Anne Arundel County Code. Preserving critical area law is important to the Chesapeake Bay and its tributaries as development within the critical area can have adverse impacts on water quality. The Critical Area Commission also filed an appeal and public hearings are scheduled to begin in June 2019.

This matter is being handled by CBF Litigation Staff Attorneys Paul Smail and Brittany Wright.

 

 

MARYLAND HABITAT AND NATURAL RESOURCES CASES

Maryland Court of Special Appeals
Vieglais v. Dep't of Natural Resources
Case No.: CSA-REG-0080-2017
Updated: 8/1/18

The owners of Beehive Beach Farm, which consists of approximately 28.09 acres of land and is located on Sahlin Farm Road in Annapolis, Maryland, sought a variance to construct a home near steep slopes descending to Hopkins Creek on the Severn River. The Administrative Hearing Officer (“AHO”) denied the variance after a hearing on December 2, 2014 stating that the conditions for granting a variance were not met.

Prior to the AHO decision, the Maryland Department of Natural Resources (“DNR”) disapproved the proposed development of the property, asserting that it violated the terms of the Forest Conservation Easement (“FCE”). The purpose of the FCE is to restrict and limit the use of land and contiguous waters to preserve the state's forests and protect the Chesapeake Bay Critical Area shoreline and aquatic habitat. The FCE prohibits construction of new structures within the Critical Area Buffer. Approximately 19.07 acres of the Vieglais property is located in the critical area and is classified Resource Conservation Area ("RCA").

As a result, the property owners filed a lawsuit against DNR in the Circuit Court for Anne Arundel County on July 31, 2015 alleging breach of contract and requesting injunctive and declaratory relief pertaining to the provisions of the FCE. They claim DNR violated the terms of the FCE, by not allowing them to construct a new dwelling on their waterfront property at the location they desired. They also appealed the AHO decision. However, the administrative appeal was stayed pending the outcome of the suit against DNR.

Conservation easements serve a critical role in preserving riparian forests and other sensitive lands from development in the Chesapeake Bay watershed. CBF filed a Motion to Intervene in the Circuit Court action on December 11, 2015, as an interested person on the side of DNR to ensure enforcement and interpretation of the FCE and on March 15th CBF's Motion to Intervene was granted. After Discovery was completed, DNR, CBF and fellow co-intervenors (James and Sylvia Earl, Sherwood Forest Company and Sherwood Forest Club, Inc.) filed Motions for Summary Judgement asserting that Defendants are entitled to Judgment in their favor as a matter of law. Plaintiffs also filed a Motion for Summary Judgement. A Complex Motions Hearing was held on December 19, 2016 and on January 26th, Judge Goetzke Ordered summary judgment as to liability and damages in favor of DNR and the Intervenors against the Plaintiffs under Count 1 of the Complaint (Breach of Contract). However, the Judge denied judgment under Counts II through V (Declaratory Relief). Plaintiff's Motion for Summary Judgment was also denied. Trial was held the week of February 6, 2017. At the conclusion of trial, Judgment was granted in favor of DNR and the Intervenor Defendants. 

On March 30, 2017, Plaintiff's noted an Appeal to the Maryland Court of Special Appeals based on the following Issues:

  1. Whether the Circuit Court erred in granting Motion to Intervene as to James and Sylvia Earl, The Sherwood Forest Club and Chesapeake Bay Foundation.
  2. Whether the Circuit Court erred in granting Summary Judgment as to liability and damages in favor of the Defendant and Intervening Defendants.
  3. Whether the Circuit Court erred in granting Motion for Judgment in favor of Defendants and Intervening Defendants.
  4. Whether the Circuit Court erred in its Declaratory Judgment in favor of Defendants and Intervening Defendants.

Briefing on the issues is complete and Oral Arguments were held on April 4, 2018 in front of a three-judge panel in the Maryland Court of Special Appeals located in Annapolis, Maryland. A decision has not been issued by the Court to date.

This case is being handled by CBF Litigation Attorney Paul Smail.

 

 

NATURAL GAS

DOMINION ATLANTIC COAST PIPELINE

U.S. Court of Appeals for the Fourth Circuit
Chesapeake Bay Foundation, et al. v. State Water Control Board, et. al.
Case No.: 18-1077
Updated: 5/1/19

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 twenty-one miles of line will cross national forest lands in Virginia and West Virginia. In addition, the proposed pipeline will create 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.

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.

MORE INFORMATION ABOUT THE ATLANTIC COAST PIPELINE

  

United States Court of Appeals for the D.C. Circuit
Atlantic Coast Pipeline, et. al. v. Federal Energy Regulatory Commission

Case No.: 18-1224
Updated: 5/1/19

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 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 an environmental impact statement.

Despite the significant environmental impacts associated with the proposed pipeline, the Commission issued the final EIS on July 21, 2017 and granted 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 request for a rehearing of the Certificate and a review of the EIS for the pipeline project with FERC. However, rather than ruling on Petitioners' rehearing request, FERC indefinitely postponed a ruling without issuing a stay while construction of the pipeline was underway. As a result, in March of 2018, CBF and our partners filed a Petition for a Writ Staying the FERC Order with the United States Court of Appeals for the Fourth Circuit asking the Court to stay construction of the Atlantic Coast Pipeline until FERC issued a final Order on the rehearing request filed on November 13th. The 4th Circuit Denied the Petition.

In August of 2018, FERC denied the rehearing request. As a result, CBF and our partners filed a Petition for Review of this decision with the U.S. Court of Appeals for the 4th Circuit. This case has been 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. Petitioner's (CBF) Opening Briefs were filed on April 5th, while Respondent's brief is due on June 19th, and Petitioner's reply briefs are due July 10th. Oral Arguments have not been scheduled.

This case is being handled by Vice President for Litigation Jon Mueller, litigation staff attorney Ariel Solaski, and staff counsel in the Virginia office.

U.S. FOREST SERVICE AND TREE FELLING

In January of 2018, FERC issued a limited notice to ACP requiring that all tree cutting activities in Virginia cease on March 15, 2018 and not resume until August 31, 2018 to minimize impacts on both migratory bird species and threatened and endangered species. On March 15, 2018, Atlantic and Dominion requested to modify certain time-of-year restrictions for tree felling and asked FERC to allow vast areas of forest destruction to continue until May 15, 2018. CBF filed comments with FERC opposing the extension request. On March 28th, FERC denied ACP's request and tree cutting in Virginia could not resume until August 31, 2018.

In addition, the 4th Circuit Court of Appeals struck down a special-use permit issued to ACP by the United States Forest Service. SELC filed the appeal challenging the permit which would have allowed ACP to begin construction of the pipeline through parts of the George Washington and Monongahela National Forests. While quoting Dr. Seuss, The Lorax (1971), the Court asked the US Forest Service to "speak for the trees, for the trees have no tongues" before sending the matter back to the Forest Service for a thorough review of the record.


 

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
Updated: 5/1/19

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 located in Richmond, VA. Petitioner's (CBF) opening brief is due by May 31st. Respondent's brief is due by July 24th while Petition's reply brief is due August 16th. Oral Arguments have not been scheduled.

These cases are being handled by Vice President for Litigation Jon Mueller, litigation fellow Evan Ryland, and staff counsel in the Virginia office and SELC.

 

 

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