U.S. District Court Strikes Down Baltimore Clean Air Act

The United States District Court for the District of Maryland has struck down the Baltimore Clean Air Act citing preemption.

The Baltimore Clean Air Act, passed in 2019 with unanimous consent of the City Council and Mayor, was set to partially take effect in 2020. The law would have compelled trash incinerators in the City to reduce emissions below state mandated levels and implement continuous monitoring of emissions.

Several parties including the two incinerator operating companies within city boundaries, Wheelabrator L.P. and Curtis Bay Energy L.P. filed suit alleging federal and state preemption among other claims. The Court agreed with the plaintiffs and determined that the Baltimore Clean Air Act is conflict preempted, specifically by Maryland’s Title V permitting system and the federal Clean Air Act. The Court further stated that the ordinance second guesses federal and state air emission regulations by establishing a stricter standard.

From the court ruling:

Here, the Ordinance conflicts with state law by prohibiting—and, in some cases, criminalizing—conduct that is permitted under the facilities’ existing Title V permits.

Unlike the penalties established by the Clean Air Act and Title V permitting system, the Ordinance imposes strict liability penalties, thereby making some of the conduct allowed by the Title V permits unlawful.

By imposing emissions standards, monitoring requirements, and criminal penalties that are significantly stronger than those mandated by the state, the Baltimore Clean Air Act undermines the Maryland Department of the Environment’s authority to decide the best way to achieve compliance with National Ambient Air Quality Standards.

From coverage in the Baltimore Sun:

Councilman Ed Reisinger, the lead sponsor of the clean air legislation, called the ruling “a slap in the face to the residents of Baltimore City, especially the southern area where both incinerators are located.”

He said the lawmakers had received legal advice from the state that the legislation fell within the city’s authority before they passed it, so he planned to discuss a possible appeal or additional legislation with colleagues, advocates and the city law department.

Incinerators in Maryland have faced a number of challenges in recent years due to their documented levels of pollution. During the 2020 General Assembly Session there were several bills aimed at incinerators including one that would have removed state subsidies for waste to energy systems.