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Md. high court will weigh MDE regulation of ammonia to protect the bay

Environmentalists have gone to court in an effort to force Maryland regulators to impose ammonia emissions standards for poultry farms. (The Daily Record/File Photo)

Maryland’s top court will consider whether the state’s environmental agency validly rejected a request from environmentalists that it impose ammonia emissions standards for all poultry feeding operations to protect the Chesapeake Bay.

The Court of Appeals this month agreed to hear the Maryland Department of the Environment’s challenge to a circuit court judge’s decision that the agency was obligated to set an ammonia emission limit in its general discharge permit for poultry feeding operations in the state.

In its appeal, MDE argues that courts owe deference to its considered conclusion that a blanket ammonia emissions standard in a general discharge permit was unnecessary and that its denial of the environmentalists’ request was neither arbitrary nor capricious regarding concentrated animal feeding operations, or CAFOs.

“In MDE’s expert view, the science does not yet support the conclusion that ammonia emissions from CAFOs result in discharges to waterways with sufficient frequency to justify an across-the-board effluent limitation applicable to the entire CAFO industry,” Assistant Maryland Attorney General Matthew Standeven wrote in the agency’s appeal.

MDE and the federal Environmental Protection Agency “are working to close that knowledge gap; MDE is monitoring the effect of CAPO ammonia emissions on ambient air quality,” Standeven added. “But based on current state of the science, MDE reasonably concluded that an across-the-board limitation on ammonia emissions from CAPOs – regardless of their specific circumstances – was not justified by the science.”

But the Chesapeake Legal Alliance stated that MDE is owed no deference and entitled to no discretion because Maryland environmental law and regulations classify ammonia as a water “pollutant” and “waste” that cannot be discharged “regardless of volume” without a standard-setting permit.

“Simply put: Given that the discharge of ‘any wastes or waste waters regardless of volume’ is illegal unless authorized by a discharge permit, the permit must acknowledge ammonia as a water pollutant,” Chesapeake Legal Alliance attorneys David L. Reed and Evan Isaacson wrote in court papers.

“It cannot be disputed, and has not been disputed by agency experts reviewing the record, that ammonia expelled by CAFOs is a significant source of nutrient pollution to the Chesapeake Bay and other waters of the state or a significant contributor to the impairments of these waters,” Reed and Isaacson added. “Appellant’s omission of controls on a well-known water pollutant that constitutes one of the largest waste streams generated by a CAFO is arbitrary and capricious, and cannot be supported by the facts included in the record before the agency at the time of its decision to issue the permit.”

The litigation’s path to the Court of Appeals has been unusual.

The courtroom odyssey began with the Montgomery County Circuit Judge Sharon V. Burrell’s March 2021 decision to send the permit challenge back to the MDE to address ammonia emissions.

MDE sought review of that decision by the intermediate Court of Special Appeals. At that point, the Annapolis-based alliance petitioned the Court of Appeals to hear the case without having it first considered by the lower appellate court.

MDE supported the alliance’s request, telling the high court the case “presents important issues of environmental protection and agency deference” that warrant expedited Court of Appeals review.

The high court is scheduled to hear arguments this fall and render its decision by Aug. 31, 2023. The case is docketed at the Court of Appeals as Maryland Department of the Environment v. Assateague Coastal Trust, No.11, September Term 2022.