Companies sue over Baltimore's own version of Clean Air Act

By Carrie Bradon | May 13, 2019

BALTIMORE (Legal Newsline) — A group of companies is suing the mayor and city council of Baltimore, alleging that they are being unfairly limited in their operations by the new Baltimore Clean Air Act.

Wheelabrator Baltimore LP, Curtis Bay Energy LP, Energy Recovery Council, National Waste & Recycling, TMS Hauling LLC filed a complaint on April 30 in the United States District Court for the District of Maryland, alleging federal Clean Air Act Preemption, Stage Conflict Preemption, State Implied Preemption, State Express Preemption and violation of due process.

The plaintiffs allege that Baltimore represented to Maryland Department of the Environment (MDE) that the plaintiff's facility was in compliance with the necessary city, state and federal permits. The suit states that the Baltimore Clean Air Act, however, threatens the plaintiffs' operations, as it prohibits the activity that is completed in the Wheelabrator and Curtis Bay facilities.

Baltimore's Clean Air Act was approved this year by the city council, and former Mayor Catherine Pugh signed it into law in March.

The act increased emissions standards for companies like Wheelabrator that burn solid waste. It threatens the company's very existence, the complaint says.

"The Act imposes extraordinary and unprecedented constraints that do not advance public health, are not science- or fact-based, and in fact are in furtherance of an agenda to close the Facilities regardless of the consequences to residents and businesses in Baltimore City and beyond," the complaint says.

"The City acknowledges that the Act will at a minimum require the Wheelabrator Facility to close for some indeterminate period of time, and perhaps forever. The Act will also cause the Curtis Bay Facility to shut down at least temporarily to install unnecessary and financially burdensome equipment upgrades. 

"This would harm the environment by restricting safe disposal capacity and impose enormous and unfair costs on the Facility Plaintiffs and more importantly, the City’s and surrounding jurisdictions’ residents and businesses."

Baltimore is increasingly environment-conscious, having also sued the energy industry for alleged effects of climate change. The city's suit mirrors others filed around the country, including three that were tossed out of court by federal judges.

The complaint is seeking damages and fees, favor declaring the Baltimore Clean Air Act to be unlawful, null and void. The plaintiffs are represented by James B. Slaughter, David Friedland, Joshua H. Van Eaton, Meghan L. Morgan, Roy D. Prather III of Beveridge & Diamond P.C. in Washington, D.C. and M. Trent Zivkovich of Whiteford in Baltimore, Taylor & Preston L.P., Michael Powell and George F. Ritchie of Gordon Feinblatt LLC in Baltimore.

United States District Court for the District of Maryland Case number 1:19-CV-01264

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Beveridge & Diamond City of Baltimore Wheelabrator

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