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Baltimore appeals decision striking down city’s Clean Air Act

Baltimore is challenging a federal judge’s decision to strike down a municipal clean air law that could have shuttered two incinerators within the city limits.

Acting City Solicitor Dana P. Moore has asked the U.S. Court of Appeals for the Fourth Circuit to review U.S. District Judge George L. Russell III’s decision last month.

“While we do not know how the 4th Circuit will treat the appeal, the lapsing time and our clients’ keen interest in moving forward compelled our decision to note the appeal,” Moore said in a statement Monday.

In March 2019, city lawmakers passed the Baltimore Clean Air Act, which required the installation of new air-monitoring equipment by September 2020 at the two waste incinerators, as well as stricter air pollution limits by January 2022.

Those restrictions likely would have shuttered the south Baltimore facility operated by Wheelabrator Baltimore L.P. and required substantial upgrades at the medical waste disposal incinerator operated by Curtis Bay Energy L.P.

Wheelabrator Baltimore’s facility burns as much as 2,250 tons of trash a day, waste that comes not just from the city but from six additional counties in Maryland and seven other states, according to activists who want the facility closed. The Curtis Bay facility is among the largest medical waste incinerators in the nation and takes refuse from 20 states, the District of Columbia and Canada.

Wheelabrator Baltimore and Curtis Bay Energy, along with a trash removal company and a pair of trade associations, filed suit last April, arguing that the Baltimore ordinance was illegal and was preempted by state and federal laws.

Russell agreed with the plaintiffs and last month struck down the Baltimore Clean Air Act. In his ruling, Russell found Baltimore could not enact a law prohibiting incinerators from operating in a manner that was authorized by the state.

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

Following that ruling, Wheelabrator Technologies Senior Vice President and General Counsel Michael O’Friel issued a statement praising the decision and saying the company looked forward to “continuing to provide the essential service of responsible waste management in the Baltimore area.”

Before Baltimore filed its appeal last week, activists held a “die in” in front of the Wheelabrator incinerator on April 22 — Earth Day — in a bid to pressure the city to defend the clean air law. The deadline for Baltimore to appeal the decision was Monday.

Protesters said they wanted to draw attention to what they called “the lives lost to air pollution and the lives that will be put at risk if the Baltimore Clean Air Act is not defended.”

“At stake here is the right of the city and all local governments in Maryland to protect their residents from air pollution,” Mike Ewall, attorney with Energy Justice Network, said in a statement. “The city has a strong legal case. With black residents dying disproportionately from COVID-19, and air pollution magnifying the situation, this is not a time to be giving up and protecting air polluters.”

Support for the appeal also united most of the Democratic candidates for City Council in District 10, where the incinerators are located. Five of the nine Democrats running to succeed Councilman Ed Reisinger, who also supports the appeal, this month signed a letter addressed to Moore urging her to appeal Russell’s ruling.

“It is our District that is the epicenter of environmental harm caused by local incinerators. The families of our community are the most directly impacted by the decision,” the candidates wrote. “Legislation such as the Baltimore Clean Air Act is intended to finally bring communities like ours the help we need to stop further damage. We are writing because enough is enough, and we need your support to ensure that our voices, and that of our neighbors, are heard.”

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