Baltimore opts to delay Clean Air Act implementation

The smokestack of the Wheelabrator waste-to-energy incinerator is seen from Russell Street in Baltimore. (Photo submitted by Emma Moore)

Baltimore will hold off on implementing its Clean Air Act emissions mandates until a federal judge rules on pending motions in a lawsuit challenging the ordinance.

The Baltimore Clean Air Act, signed into law in March 2019, 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 by state and federal law.

The act requires installation and operation of air monitoring equipment at the facilities by September 2020 and requires pollution limits to be met by January 2022. But according to a letter to U.S. District Judge George L. Russell III earlier this month, the plaintiffs say they “cannot comply with the Act’s approaching implementation deadlines.”

The plaintiffs requested the act be stayed until the court rules on pending motions for summary judgment, which were filed by both sides. The city agreed to the stay in a phone conference Wednesday and Russell later issued an order memorializing the agreement. It is unclear when Russell might rule, but according to the plaintiffs’ letter the parties have finished briefing the motions and they are ripe for a decision.

The lawsuit alleges the ordinance is not a good-faith effort to regulate emissions but rather a targeted attempt to close the Wheelabrator and Curtis Bay facilities.

The facility operators claim they would need to shut down temporarily, at a minimum, to comply with the ordinance and Wheelabrator alleges it could be forced out of business. Both facilities say they are in compliance with current state and federal emissions requirements.

The pending motions address the issue of preemption: whether the city has the authority to regulate emissions when the state and federal governments are already doing so.

Baltimore claims 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.

The plaintiffs contend that the city is misconstruing preemption law and that the ordinance interferes with the Clean Air Act framework and state permits.

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