The Maryland Department of the Environment may still impose upon counties stormwater pollution-prevention standards more stringent than those called for under the federal Clean Water Act, the state’s top court ruled Wednesday in rejecting Queen Anne’s County’s argument that the court should overturn its similar 2019 decision.
Citing its earlier ruling as binding precedent, the Court of Appeals said MDE acted within its Clean Water Act authority when it issued a permit holding the county responsible for stormwater runoff to the Chesapeake Bay not only from the county’s Municipal Separate Storm Sewer Systems – known as MS4s – but from natural “nonpoint” sources such as parking lots and fields.
The court said, as it had in 2019, that the Clean Water Act – as administered by the U.S. Environmental Protection Agency – sets a minimum standard for stormwater permits and allows state agencies, such as the MDE, to be more demanding.
Carroll County had brought the earlier challenge to MDE’s action and appealed the Court of Appeals’ decision to the U.S. Supreme Court, saying the state agency had overstepped its authority under the federal law. The justices in 2020 declined without comment to hear Carroll County’s appeal.
Christopher D. Pomeroy – then Carroll County’s attorney and now attorney for Queen Anne’s County – did not immediately respond Friday to a request for comment on whether he plans to seek review again by the Supreme Court.
Pomeroy is with AquaLaw PLC, a Richmond, Virginia-based law firm specializing in permitting requirements under the Clean Water Act.
The MDE said in a statement Friday that it “appreciates the decision of the Court (of Appeals) and is committed to working closely with the counties and municipalities on reducing water pollution and protecting the Chesapeake Bay and its tributaries.”
The high court, in ruling against Queen Anne’s County, took the unusual step of issuing its decision in a per curiam opinion, in which no single judge claims authorship.
The Court of Appeals’ unsigned opinion is laden with references to the doctrine of stare decisis, which holds that earlier court decisions should be overturned only if they were clearly wrong or if circumstances have markedly changed. The high court said the fact that Queen Anne’s County has a smaller population than Carroll County is a distinction without a difference with regard to the 2019 decision in Carroll County v. Maryland Department of the Environment.
“While we respectfully acknowledge there often can be multiple interpretations of a statutory text, we do not disturb this court’s original interpretation simply because we are asked twice,” the per curiam opinion stated. “Moreover, the construction of the statutory text in Carroll County reflects the current interpretation of the statute by the EPA. If the court was ‘clearly wrong’ in that case, so too is the EPA.”
Such is the power of stare decisis that no judge dissented from the Court of Appeals’ per curiam decision, in stark contrast to the divided court’s 4-3 ruling in Carroll County.
Judges Shirley M. Watts and Joseph M. Getty, who wrote dissenting opinions in Carroll County, stated in a concurring opinion that their view regarding MDE’s limited authority had not changed but that they were bound by the court’s contrary 2019 decision.
“If we were writing on a blank slate, I would agree with (Queen Anne’s) County, adopt the conclusions set forth from my dissent in Carroll County, and hold that it was unlawful for the MDE to impose requirements that exceeded the ‘maximum extent practicable’ standard and made the county responsible for discharges from third parties and nonpoint source pollution,” Watts wrote in a concurrence joined by Getty, now a retired judge sitting by special assignment. “This court is not, however, writing on a blank slate.”
Judge Brynja M. Booth, who was not on the court when Carroll County was decided, also joined Watts’ concurrence. Booth wrote separately to state she would have dissented in 2019.
“While I may agree with the legal analysis expressed by the dissent in Carroll County, a mere disagreement with the majority is not a sufficient reason to overrule precedent,” Booth wrote in her own concurrence joined by Watts and Getty. “In other words, although I may feel that the Carroll County decision was wrong, I cannot say that it was clearly wrong and contrary to established principles – a high standard for any litigant to satisfy to convince us to overturn precedent.”
Judge Michele D. Hotten, the third dissenter in Carroll County, joined a concurring opinion by Judge Robert N. McDonald, who wrote the majority opinion in that precedent-setting decision.
“The language and legislative history of the Clean Water Act are clear that Congress intended that statute both to set a minimum standard and to preserve the states’ authority to do more,” McDonald wrote in a concurrence also joined by Judge Sally D. Adkins.
“And the language and legislative history of the Maryland statutes are equally clear that the General Assembly likewise regarded the federal law as the minimum standard and conferred authority on the department to do more,” McDonald added. “Thus, state law provides an independent source of authority for the department to issue MS4 discharge permits, quite apart from the department’s authority under federal law.”
McDonald and Adkins are retired judges who were sitting by special assignment.
Jonathan Biran was the only judge on the seven-member court who did not participate in a concurrence to the per curiam opinion in Maryland Small MS4 Coalition et al. v. Maryland Department of the Environment, No. 25, September Term 2021.