A controversial set of regulations limiting the use of chicken manure on Eastern Shore farms as a way of controlling the amount of phosphorous that seeps into the Chesapeake Bay could be withdrawn under Gov. Larry Hogan.
An advice letter issued Dec. 12 by the Office of the Attorney General to then-Sen. David Brinkley, who was appointed earlier this year as Hogan’s budget secretary, stated that regulations could be withdrawn before the final notice of adoption is published in the Maryland Register.
“I could find no Maryland case law or previous opinion of the Attorney General addressing the ability of an agency or the Governor to withdraw a notice of adoption after its submission to the (Department of State Documents) but before publication of the notice so I can only predict how a reviewing court would interpret the law after weighing the arguments on each side,” wrote Sandra Benson Brantley, counsel to the General Assembly, in a letter obtained by The Daily Record.
Brantley went on to conclude: “It is my view that a Maryland court is likely to hold that, after the closing date for submission but before publication in the Register, an agency or a Governor may withdraw its notice of adoption of a regulation previously submitted by the agency. Moreover, if the notice of adoption is withdrawn and thus, not published, the proposed regulations do not take effect.”
David Nitkin, a spokesman for the Office of the Attorney General, said Brian E. Frosh “stands by this advice” even though it was written under his predecessor, Douglas Gansler.
Outgoing Gov. Martin J. O’Malley announced late last year he would move forward with the regulations which are favored by environmental groups but opposed by the poultry industry and farmers.
The notice of final action was signed by the Department of Agriculture late last week and the final regulations could be published in the Maryland Register on Jan. 23, making them official, unless they are withdrawn by Hogan and his Agriculture Sec.-designee Joseph Bartenfelder.
Hogan, who will be sworn in later today, has been critical of O’Malley for attempting to move forward with the regulations in the waning days of his administration.
Hogan, who has repeatedly spoke in opposition to the regulations, has not commented publicly on whether or not he intends to withdraw them.