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Horseshoe Casino
Mayor Stephanie Rawlings-Blake applauds the official groundbreaking for the Horseshoe Casino in Baltimore in May 2013. (The Daily Record/Maximilian Franz)

Federal judge tosses suit over Horseshoe

A federal judge has dismissed a lawsuit that claimed the construction of the Horseshoe Baltimore Casino constituted race-based environmental discrimination against residents of the nearby neighborhoods.

Judge Richard D. Bennett ruled that a large group of Westport and Cherry Hill residents lacked standing to bring the U.S. District Court action and “failed to demonstrate a valid claim as a matter of law.”

Lead plaintiff James R. Robinson and 53 other plaintiffs who live within a few miles of the Russell Street construction site claimed that the choice of the site amounted to environmental racism against their predominantly African-American communities, and that proper guidelines were not met for containing existing contamination at the site.

Construction began in spring 2013 and the suit was filed that August against the Maryland Department of the Environment, Secretary of the Environment Robert M. Summers, the Baltimore Development Corp., the mayor and City Council of Baltimore and CBAC Gaming LLC, which is operating the casino.

Bennett previously dismissed a temporary restraining order to halt construction until more chemical testing on the site could be done.

The plaintiffs then abandoned their attempt to block the casino’s construction. Their amended complaint seeks declaratory relief and $100 million in damages, the opinion notes.

However, Bennett found the plaintiffs lack standing to bring those claims at this point, noting that damages would not “redress” the future environmental harm the plaintiffs alleged.

“Plaintiffs have failed to explain how an award of damages will remedy the prospective environmental harm identified as the injury undergirding their various claims,” Bennett wrote.

The $400 million casino is being built on the former site of the Maryland Chemical Co., which stored and sold chemicals from 1904 to 2009. Residents claim construction will stir up chemicals that are picked up by groundwater and flow into the nearby Middle Branch of the Patapsco River.

The construction of a casino in Baltimore was approved by the General Assembly in 2007 and by voters in 2008. CBAC Gaming was awarded a license to operate the site in July 2012.

Developer Las Vegas-based Caesars Entertainment Corp expects the 335,000-square foot casino along with a 4,000-space parking garage to open later this summer.

The MDE declined to comment on the case. Plaintiffs’ attorney Anuj Sud of Sud Law Firm in College Park, CBAC Gaming’s attorney M. Rosewin Sweeney of Venable LLP in Baltimore and the Baltimore City Solicitor’s Office did not respond to requests for comment.

Another federal lawsuit brought by waterman Mark E. Richardson claiming violations of the federal Clean Water Act against the mayor and City Council of Baltimore was dismissed in January.

The claims

Bennett’s May 16 order dealt with Robinson’s second amended complaint. Filed in December 2013, it alleged violations of the Civil Rights Act of 1964, the U.S. Constitution’s Equal Protection Clause and 14th Amendment, and public nuisance laws. Robinson also claimed MDE breached its agreement with the Environmental Protection Agency to properly clean up contaminated sites.

Bennett found the plaintiffs could not prevail on any of the federal causes of action.

In particular, the judge said there was “no purposeful racial discrimination” by the city or CBAC Gaming.

“To permit plaintiffs to pursue their claim in this context would expose Baltimore City (or any other municipality) to wide-spread, open-ended liability for any redevelopment project in blighted areas that are in some proximity to neighborhoods with significant populations of racial minorities simply based upon bald allegations of purposeful discrimination,” Bennett wrote.

Bennett declined to issue an opinion on Robinson’s state law claims, noting that a related case, Sherrill et al. v. MDE et al., is on appeal in the Court of Special Appeals.

That action, which includes three plaintiffs who are also in the Robinson case, was dismissed by a Baltimore City Circuit Court judge who found the plaintiffs had two opportunities to comment on the environmental response action plan for the site and failed to show a particularized harm in their public nuisance claim.

The properties on which the casino is being built were acquired by the city in 2005 and 2008. Environmental assessments conducted at the site between 2000 and 2009 found the soil and groundwater were contaminated with arsenic, lead, chlorinated solvents and poly-aromatic hydrocarbons, according to the federal court opinion.

The properties were admitted into Maryland’s Voluntary Cleanup Program and the city created a response action plan to decontaminate the site in May 2011.

Among other things, Robinson claims MDE allowed CBAC Gaming and the city to bypass regulatory guidelines and begin construction before a response action plan was approved. A public meeting on the response action plan was held in April 2013, but Robinson claimed it had already been approved without public notice.