Beveridge & Diamond
 

EIP and CCAN Drop NPDES Ash Transport Water Permit Appeal

Beveridge & Diamond, P.C., January 9, 2012

Both the Environmental Integrity Project (EIP) and the Chesapeake Climate Action Network (CCAN) have voluntarily dismissed an appeal pending before the Maryland Court of Special Appeals, challenging Maryland’s application of the United States Environmental Protection Agency’s (EPA) Steam Electric standards established for ash transport water.  In an appeal that contested a power plant’s National Pollutant Discharge Elimination System (NPDES) permit issued by the Maryland Department of the Environment, appellants asserted that a state must impose its own more stringent effluent limitations, rather than apply EPA’s effluent limitation guidelines that EPA established under that categorical standard.  EIP and CCAN dropped their appeal before filing a reply brief because they could not find a way to undermine a key procedural argument of first impression in Maryland: that there was no jurisdiction to hear the appeal under a new Maryland statute that established the procedure for review of environmental permits.

In a briefing before the Maryland Court of Special Appeals, Beveridge & Diamond, P.C. explained that the Court lacked jurisdiction because there is no statutory right to an appeal from the decision of the Circuit Court (the trial level court in Maryland), when that court conducted judicial review of an administrative agency decision on an environmental permit. “It is an often stated principle of Maryland law that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted.” (citations omitted).  There were only three possible statutory bases for the appeal: (1) a general right to an appeal, (2) the appeal provided in the Maryland Administrative Procedure Act (APA) for judicial review of contested cases, and (3) the underlying statute providing the right to judicial review. Beveridge & Diamond’s brief addressed each of these three possible sources of a right to appeal, and why none are available under current law. 

Maryland’s environmental permit review procedures had been statutorily revised in recent years, and this revision eliminated the appeal right.  Under the old procedure, the State’s APA explicitly provided a right to an appeal.  The former right of appeal under the APA was extinguished as of January 1, 2010, when the new, streamlined procedure for most environmental permitting went into effect.  That streamlined procedure entirely eliminated APA contested case hearings for permits and provided a direct appeal to a Maryland Circuit Court.  The new law did not provide any right of further appeal. 

Under Beveridge & Diamond’s analysis, without any explicit statutory basis for further appeal, none exists.  Apparently EIP and CCAN were unable to find any way around this result. In response to the briefing of this legal issue, the State is expected to introduce emergency legislation to be introduced in the Maryland legislative session that convenes January 11, 2012.  The emergency legislation would re-establish a right to appeal to the Maryland Court of Special Appeals for challenges to Maryland Department of the Environment permitting decisions. 

For more information, please contact Pamela Marks at pmarks@bdlaw.com.

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