B&D Preemption Win Cemented with Settlement in Wheelabrator v. Baltimore Case

On November 5, 2020, the City of Baltimore approved a 10-year contract extension with Beveridge & Diamond client Wheelabrator Baltimore to continue operation of a waste-to-energy facility that processes much of Baltimore and surrounding jurisdictions’ solid waste, producing electricity and steam. The contract extension is part of a settlement between the parties in which the City agreed to drop its appeal of a preemption ruling secured by B&D litigators last March, Wheelabrator Baltimore v. City of Baltimore, 449 F.Supp.3d 549 (D.Md. 2020). In that ruling, U.S. District Court Judge George Russell III found that the Baltimore Clean Air Act – which sought to impose onerous new pollution limits on the facility -- conflicted with and undermined the state's Title V permitting program for air pollution control.  The court also ruled that the City’s ordinance second-guessed the federal and state scheme for regulating air emissions. A more detailed history of the case and Judge Russell’s grant of summary judgment to Wheelabrator last March is available here.

Wheelabrator Baltimore said in a statement that it is "pleased to have reached a long-term agreement that will enable the city to continue to convert its waste into renewable energy and allow Wheelabrator Technologies to invest some $40 million into our Baltimore facility. The installation of additional air-quality controls ensures Wheelabrator Baltimore will achieve among the lowest emissions of any waste-to-energy facility in the nation as part of the U.S. EPA’s preferred means of managing unrecycled waste."

Baltimore Mayor Jack Young called the contract “a fair balance between fiscal prudence and social responsibility.”

Beveridge & Diamond client National Waste & Recycling Association, a co-plaintiff in the case with Wheelabrator, issued a press release commending the settlement.

B&D’s team included Washington, DC principals Jimmy SlaughterDavid FriedlandTony Michaels, and Josh Van Eaton, Baltimore principal Roy Prather, and Boston associate Meghan Morgan.

The settlement and underlying decision in Wheelabrator’s favor have received extensive media coverage, including Law360 (subscription required) and The Baltimore Sun.