Md. Supreme Court defers to state on ammonia regulations for chicken plants

The state’s top court has sided with the Maryland Department of the Environment in a dispute over airborne pollution from chicken farms, a ruling that frustrated environmental activists who say local waterways and communities are not being adequately protected.

In a 6-1 decision, the Maryland Supreme Court found that the department’s permitting scheme for animal feeding operations (AFOs) does enough to regulate ammonia, an irritating gas that is emitted from animal waste and causes nutrient pollution.

Excess nutrients like nitrogen make algae grow, which reduces the amount of oxygen in the water and increases toxins. Nutrients are a key contributor to pollution in the Chesapeake Bay, which has been the focus of decades-long restoration efforts.

Chicken farms, like those on Maryland’s Eastern Shore, create tens of millions of pounds of waste that emits ammonia into the air — where it can then land in surrounding communities or waterways.

Every five years, Maryland’s Department of the Environment issues a water pollution control permitting plan. The 2019 proposal included a provision that “if outdoor air quality is determined to be a resources concern,” the poultry facility should use appropriate standards to address the issue.

Environmental groups argued the provision does not go far enough in regulating ammonia emissions and essentially leaves it up to the polluter to determine if air quality is a concern.

The department responded that it had limited authority to regulate air quality using state and federal water regulations, but the provision in the 2019 proposal went farther than previous permitting schemes.

A majority of the Supreme Court justices agreed.

“The Department’s decision to evaluate each AFO individually and to require appropriately tailored best management practices to control these emissions where they present a real risk of discharge, is reasonable and falls within the discretion afforded to the Department by the Legislature under Maryland’s water pollution control law,” Justice Brynja M. Booth wrote. “We will not substitute our judgment for that of the agency.”

In a dissenting opinion, Justice Shirley M. Watts found that the department is required to regulate ammonia as a water pollutant, and agreed with environmental groups that it is not clear the proposed permitting plan would do so adequately.

Watts noted that under the permitting system, a farm’s “plan writer” is responsible for determining if outdoor air quality is a “resource concern” that must be addressed. The plan writer, she noted, is hired by the farm’s owner.

It is also not clear whether residents who live nearby have any real mechanism to challenge the plan writer’s decision and what enforcement options, if any, the department has if a farm does not address outdoor air quality.

“To put it colloquially, having a writer of a Required Plan determine whether outdoor air quality is a resource concern is like having a fox guard the henhouse,” Watts wrote.

In a statement, the Assateague Coastal Trust and Chesapeake Legal Alliance decried the decision as one that will hurt Maryland’s waters and the communities around poultry plants.

David Reed, the executive director of the Chesapeake Legal Alliance, called the decision disappointing, but added, “mostly we are just concerned about what this means for our client and the communities affected by pollution from these facilities.”

“As the dissenting opinion emphasized right from the first sentence, this is a clear case of environmental injustice and an agency that has previously turned a blind eye to it,” Reed said.

In an email, MDE spokesman Jay Apperson said: “Now that this lawsuit is resolved, we have an opportunity to move forward and strengthen our ability to protect the environment. Our next permit renewal will be issued in 2025, and we are excited to work with the public and every stakeholder to improve the health of our land, water and air.”