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Baltimore Clean Air Act is invalidated by federal judge

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

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

A federal judge has struck down Baltimore’s Clean Air Act, finding the ordinance is preempted by state environmental law.

The BCAA, signed into law in March 2019, imposed emissions standards that were 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 2019, arguing the ordinance is illegal and was preempted by state and federal law.

U.S. District Judge George L. Russell III ruled Friday that Baltimore’s law prohibits incinerators from operating in a way that the state has authorized and that therefore it is in conflict with state law.

“Put simply, the Ordinance is conflict preempted because it virtually invalidates the facilities’ state-issued Title V permits,” Russell concluded.

Acting City Solicitor Dana P. Moore said Monday that she was reviewing the filings in the case to make an assessment about whether to appeal.

Wheelabrator praised Russell’s decision Friday and called the BCAA “fundamentally flawed.”

“We appreciate the court’s detailed review of this matter and look forward to continuing to provide the essential service of responsible waste management in the Baltimore area by converting everyday waste into clean, renewable energy,” Wheelabrator Technologies Senior Vice President and General Counsel Michael O’Friel said in a statement.

The Energy Justice Network, which worked to pass the BCAA, denounced Russell’s ruling.

“Maryland law clearly authorizes local governments to ‘set emission standards or ambient air quality standards’ so long as the local standards are no less stringent than the state,” Executive Director Mike Ewall said in a statement. “The court got it wrong. They’re essentially gutting state law by interpreting anything stricter as being illegal.”

The act required installation and operation of air monitoring equipment at the facilities by September 2020 and required pollution limits to be met by January 2022. The lawsuit claimed the ordinance was not a good-faith effort to regulate emissions but rather a targeted attempt to close the Wheelabrator and Curtis Bay facilities. Russell dismissed the plaintiffs’ claims that they were unfairly targeted.

The city had agreed to wait to implement the law until Russell ruled on the pending motions because the plaintiffs said they could not comply with the guidelines in time.

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

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