For twenty years, environmental organizations and community associations repeatedly attempted to broaden the state of Marylandís property-based standing requirements to enable citizens to challenge environmental permits. Finally, Maryland lawmakers passed an important bill that will expand standing requirements to challenge certain environmental permits and Critical Areas variance decisions. Governor Martin O'Malley signed the "Standing-Miscellaneous Environmental Protection Proceedings and Judicial Review" into law after the 2009 Legislative Session. The new law will streamline the permitting process in exchange for adopting federal standing requirements for individuals and associations to challenge inadequate permits and other environmental decisions made by government entities.
Working on behalf of Waterkeepers Chesapeake of Maryland, a group of Riverkeepers and Waterkeepers committed to protecting Marylandís rivers, streams, and the Chesapeake Bay, student attorneys in the Environmental Law Clinic were the primary researchers and drafters of this legislation. Clinic students worked countless hours researching standing laws in the other 49 states, attending coalition work group sessions, and quickly responding to research questions posed by various General Assembly members. The students also drafted testimony for witnesses who testified at the bill hearings; the witnesses were from a coalition comprising the individual Riverkeepers and other environmental organizations including the Chesapeake Bay Foundation, 1000 Friends of Maryland, and the Maryland League of Conservation Voters.
"The University of Maryland Law Clinic students deserve special kudos for the countless hours spent in drafting and researching the provisions of this legislation. Without their help, in addition to all the stakeholders involved, passage of this bill would not be a reality," says Michele Merkel, Chesapeake Regional Coordinator for the Waterkeeper Alliance.
"Standing" refers to an individual's or association's ability to bring an action in court. Federal courts and the majority of states require a potential plaintiff to demonstrate an injury-in-fact, a causal link between that injury and the relief sought, and that the injury can be redressed by the court. Maryland common law, however, uses a stricter standard, generally requiring potential plaintiffs to show a property interest distinct from the general public. Maryland also does not recognize an association's ability to assert standing on behalf of its members. In the past, these requirements have proved to be nearly insurmountable hurdles for environmental associations seeking to challenge regulatory actions in the state.
By passing this bill, Maryland legislators agreed to adopt the federal standing requirements that 44 other states have adopted for certain permit challenges. As a result, more individuals and various community and environmental associations will be able to challenge defective permits. While the federal test for standing is still a very high threshold to overcome, it does not require potential plaintiffs to own adjacent property. Now, more concerned citizens and associations can have a say in the effectiveness of environmental permits issued to industries in their neighborhoods. This is a huge victory, especially from an environmental justice standpoint.
For example, a Kent County Circuit Court judge ruled last year that the Chester River Association lacked standing to challenge the alleged dumping of phosphorus and pollutants in the Chester River by an Eastern Shore chemical plant because the Association did not live within "sight or sound" range to be considered "aggrieved." Likewise, members of the Cedar Heights Community Association in Prince George's County have been largely powerless to challenge permits issued to industries in their neighborhood because the facilities are located approximately 500 feet across the road. A number of residents in this predominantly African-American community have complained for years of respiratory problems and issues with dust from the facilities coating their cars and clogging their home air filters.
As Delegate Maggie McIntosh, Chair of the Environmental Matters Committee and chief sponsor of the House bill explains, "The heart of this issue is environmental justice. Neighborhood organizations, environmental groups and others should have the same legal right to challenge state-issued environmental permits that impact their communities, in the same venue, and at the same time, as a company or permit applicant arguing in favor of the permits. This bill allows both sides to finally be heard in the Maryland State Courts."
Senator Brian Frosh, Chair of the Judicial Proceedings Committee and chief sponsor of the Senate bill, states, "Maryland for years has nearly barred the court doors when it comes to the publicís right to challenge state environmental decisions. This bill helps bring us into the 21st century."
Del. McIntosh and Sen. Frosh deserve special thanks for sponsoring this bill and working hard to make federal standing for these permits possible. The General Assembly has shown that it is ready to bring Maryland into line with the majority of states regarding these permits. Passage of this bill is a giant step forward for Maryland and will allow greater citizen involvement in certain permitting processes.