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Environmental group has standing, says Court of Appeals

An environmental group has standing to challenge roadway construction it says may pollute the Patuxent River, because one of its members paddles on and draws and sells maps of the waterway, Maryland’s top court has ruled.

The Court of Appeals, in its 5-2 decision, said the pollution’s potential harm to David Linthicum’s “aesthetic, recreational and economic interests” in a clean Patuxent River is sufficient to permit the Patuxent Riverkeeper group, of which he is a member, to seek judicial review of the state’s approval of the construction.

The decision reversed a Prince George’s County Circuit Court ruling that the group lacked standing to challenge the Maryland Department of the Environment’s approval of Woodmore Towne Centre’s construction of a road — since completed — across a stream and into its shopping complex in Landover.

The Court of Appeals decision provided a victory for the environmental group, which has filed lawsuits in state court against MDE and in federal court against the U.S. Army Corps of Engineers, which also approved the project.

In contrast to Maryland’s top court, a federal judge in Greenbelt ruled Monday that Patuxent Riverkeeper lacked standing to challenge the corps’ approval of the development plan.

U.S. District Court Judge Alexander Williams Jr. said Linthicum had not shown he would likely suffer “an imminent or future injury” as a result of the road being built. Linthicum’s fears of environmental harm stem only from his personal observation and articles he has read, Williams ruled.

But the Maryland Court of Appeals on Friday said Linthicum, “an avid paddler and mapmaker,” had “reasonable concern” that pollution from the construction would harm the river where he paddles and draws.

Patuxent Riverkeeper’s attorney, G. Macy Nelson, called the decision a victory for all environmental groups seeking to challenge a proposed development as environmentally harmful.

“We want what the law allows, which is a broad standard [for standing], and we got it,” said Nelson, of the Law Office of G. Macy Nelson LLC in Towson.

As for Williams’ ruling, Nelson said he believes “the federal court erred because the court interpreted the law to require us to prove causation, which the law does not require. We are optimistic that we can get that ruling overturned on appeal.”

Fred Tutman, who heads Patuxent Riverkeeper, called the Court of Appeals decision “good for the environment, good for the river,” in that it will broaden the opportunity of groups to gain standing.

“The whole point of the changes of the standing law was to make it easier for people to challenge permits where they have knowledge and information,” Tutman said. “Justice was a long time coming. It’s our turn. It’s the environment’s turn.”

Woodmore’s attorney, Edward C. Gibbs Jr., said he and his client are “analyzing our options,” including whether to appeal to the U.S. Supreme Court based on the Court of Appeals’ interpretation of the state law, which mirrors the federal standing standard.

“This is apparently the first ruling of the Court of Appeals interpreting the federal ‘injury in fact’ standing law,” said Gibbs, of Gibbs & Haller in Largo.

In its permit issued March 19, 2010, MDE authorized the filling of less than an acre of non-tidal wetlands and allowed the developer to place several streams in a culvert to accommodate the access road for the development.

Linthicum, as a member of Patuxent Riverkeepers, said the road’s development would cause nitrogen and other pollutants to leach into waters downstream, interfering with his ability to enjoy boating and mapping the river.

Linthicum, who uses the waterway 8.5 miles downstream, did not return a telephone message seeking comment Friday.

MDE, through the attorney general’s office, took no position before the Court of Appeals on whether the group has standing. In papers filed with the high court, the department said “it stands ready to defend the merits of its permit decision” if standing is granted.

The Court of Appeals, which heard arguments in the case June 6, cited Supreme Court precedent and Maryland law. The Maryland court said environmental groups have standing so long as one member can show a “demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants” due to the challenged development.

The member must have a “demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future,” Judge Lynne A. Battaglia wrote for the majority. She said Linthicum satisfied this standing requirement.

The court’s decision was its first under a 2009 Maryland law that relaxed the standing requirement for individuals and groups raising an environmental challenge. The old law permitted standing only when the individual was “aggrieved” by a loss in property value.

The new law places the standard at a loss in aesthetic, recreational and economic value.

In dissent, Judge Glenn T. Harrell Jr. said Linthicum had not satisfied these three requirements.

Linthicum has neither reduced his recreation on the Patuxent River nor stated that he intends to stop, Harrell said.

In addition, Linthicum’s concerns about pollution are not personal but based on “generalized and assumed impacts” related to any construction affecting the river, Harrell wrote.

Joining Battaglia’s opinion were Chief Judge Robert M. Bell and judges Clayton Greene Jr., Sally D. Adkins and Mary Ellen Barbera.

Judge Joseph F. Murphy Jr. joined Harrell’s dissent.

WHAT THE COURT HELD

Case:

Patuxent Riverkeeper v. Maryland Department of the Environment et al., CA No. 139, Sept. Term 2010. Reported. Opinion by Battaglia, J. Dissent by Harrell, J. Argued June 6, 2011. Filed Sept. 30, 2011.

Issue:

Did the circuit court err in denying standing to environmental group when a member alleged aesthetic, recreational and economic injury from pollution?

Holding:

Yes; group standing is satisfied under Supreme Court precedent and Maryland law if a member sufficiently alleges aesthetic, recreational and economic injury.

Counsel:

G. Macy Nelson for petitioner; Adam Snyder and Edward C. Gibbs Jr. for respondents.

RecordFax # 11-0930-21.