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City, incinerators debate preemption in Clean Air Act case

Heather Cobun//Daily Record Legal Affairs Writer//August 19, 2019

City, incinerators debate preemption in Clean Air Act case

By Heather Cobun

//Daily Record Legal Affairs Writer

//August 19, 2019

Baltimore is asking a federal judge to dismiss a lawsuit brought by city incinerators over the Baltimore Clean Air Act, arguing the city had the authority to pass the ordinance and was not preempted by state or federal regulations.

Passed in February and signed into law in March, Baltimore’s ordinance imposes emissions standards that are intentionally more stringent than state and federal laws. Incinerator operators Wheelabrator Baltimore L.P. and Curtis Bay Energy L.P., as well as a trash removal company and two trade associations, filed suit in U.S. District Court in Baltimore in April arguing the ordinance is illegal and was preempted.

Baltimore moved to dismiss the lawsuit last month, arguing that the federal Clean Air Act explicitly recognizes that regulating the sources of pollution is primarily the responsibility of local governments and that Congress only prohibited localities from adopting standards less stringent than the federal standards. Maryland’s environmental laws contain similar limitations.

“In short, Baltimore City has broad and clear authority to enact ordinances regulating pollutants more stringently than state and federal law, and acted in accordance with that authority in passing the (ordinance),” the motion contends.

But in an opposition to the motion filed Friday, the plaintiffs argue that the city is misconstruing preemption law and that the ordinance interferes with the Clean Air Act framework and state permits.

“The City argues that the Complaint should be dismissed because Congress and the Maryland legislature have authorized passage of the Ordinance,” the plaintiffs claim. “This is not so, and in any event the City’s strained statutory interpretation provides no basis for dismissal at the pleadings stage.”

In their complaint, the plaintiffs allege the ordinance will cost taxpayers “tens of millions of dollars” and “imposes extraordinary and unprecedented constraints that do not advance public health, are not science- or fact-based, and in fact are in furtherance of an agenda to close the Facilities regardless of the consequences to residents and businesses in Baltimore City and beyond.”

The facilities claim that they will need to shut down temporarily, at a minimum, to comply with the ordinance and that Wheelabrator may go out of business even though it is in compliance with state and federal emissions requirements.

The city argues the ordinance is presumed to be rational and the plaintiffs’ allegations “do not advance beyond conclusory assertions and bare suggestions of animosity.”

No hearings had been scheduled in the case as of Monday.

The case is Wheelabrator Baltimore L.P. et al. v. Mayor and City Council of Baltimore, 1:19-cv-01264.


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