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

The Maryland Department of the Environment ignored the harm ammonia inflicts upon the Chesapeake Bay when MDE invalidly declined to impose emissions standards for the noxious gas on all Eastern Shore poultry feeding operations, an environmental attorney told a seemingly skeptical Maryland high court last week.

David L. Reed said MDE arbitrarily and capriciously refused to set a blanket emissions standard in a general discharge permit for the nearly 550 concentrated animal feeding operations, or CAFOs, in light of the known danger posed by nitrogen in the ammonia that emanates from the manure of the industry’s millions of chickens.

“The biggest problem (facing the bay and its tributaries) is the relentless addition of excess nitrogen to these waters,” said Reed, of the Chesapeake Legal Alliance.

“Anyone who has driven across the Eastern Shore is familiar with the smells from these chicken houses,” Reed told the high court. “What’s less obvious is the enormous amount of nitrogen pollution coming from these houses.”

MDE’s attorney countered that the department reasonably concluded that an across-the-board emissions standard for all CAFOs was not necessary.

Rather, the issue of high ammonia emissions entering Maryland waterways would best be regulated on a CAFO-by-CAFO basis based on science, Assistant Maryland Attorney General Matthew Standeven said.

“The decision of the department is that given the current state of the science in the record they didn’t feel confident making the broad determination that there is actual, in fact, discharges from each permit entity across the state,” Standeven added. “There is a lot of variability between the locations of these permitees, their distance to waters of the state, the individual topography, the amount of vegetation, the potential impact, (and) how and if gaseous pollutants are being discharged.”

Several Court of Appeals judges appeared to side with Standeven, saying judicial deference is generally owed to the agencies that enforce federal and state laws.

Judge Brynja M. Booth said MDE is in fact regulating ammonia emissions but has chosen to do so on a site-by-site basis.

“Why is that not a reasonable interpretation of MDE’s authority under the (federal) Clean Water Act and the (Maryland) Environmental Law Article?” Booth asked Reed.

“They are choosing to regulate air emissions and ammonia,” Booth added. “Why isn’t it reasonable for this court to rely on the agency’s expertise to determine on a site-specific basis how to address that?”

Judge Shirley M. Watts said MDE’s statement in its permits that it will monitor outdoor air quality emissions apparently constitutes “sufficient language” to include ammonia.”

And Judge Steven B. Gould said administrative challenges remain available to individuals who believe an operator has violated its MDE permit.

Reed responded that MDE did not adequately address the threat of ammonia emissions in its preparation or issuance of the CAFO permits.

“There is nothing in the record that shows any deliberative process here,” Reed said. “The agency has not applied its expertise, which is why it doesn’t deserve deference in this case.”

He added that the permits’ reference to outdoor air quality is “impermissibly vague” and therefore might not address regulation of ammonia emissions.

The environmental 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 Chesapeake Legal 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 expected to render its decision by Aug. 31. The case is docketed at the Court of Appeals as Maryland Department of the Environment v. Assateague Coastal Trust, No.11, September Term 2022.