In fighting for the environment, where can you stand?
When - if ever - can citizens go to court if they believe a new factory or development is going to degrade the environment?
That's the question now before the Maryland Court of Appeals. The state's highest court heard arguments Monday in a case that could determine what rights Marylanders have to challenge a regulatory agency's approval of a project or activity they are convinced will cause unwarranted pollution or harm to natural resources.
The Patuxent Riverkeeper challenged a permit the state Department of the Environment granted to a developer to build a road across a stream near the Washington Beltway. The river watchdog group contended that destruction of 3/4 acre of wetlands along the stream would increase nutrient and sediment pollution downstream.
But the Prince George's County Circuit Court threw the case out, ruling that the group and the resident on whose behalf it sued had no legal standing to question the state's action.
Macy Nelson, lawyer for the riverkeeper, argued that the lower court's ruling runs counter to legislation approved in 2010 intended to give citizens and groups greater access to courts to challenge environmental permit decisions. The resident opposed to the wetlands loss, David Linthicum, lives on the Patuxent and paddles up the affected stream, the Western Branch, several times a year to within 8.5 miles of the crossing, until the stream becomes too shallow and narrow to kayak any farther, Nelson said.
Courts have granted citizens and groups broad rights to go to court to enforce environmental laws when someone is polluting, Nelson pointed out, but this case is about challenging prospective harm - preventing it before it occurs.
Edward Gibbs, lawyer for the developer of Woodmore Towne Center at Glenarden, argued that Linthicum and the riverkeeper group had not met the legal threshold for challenging the state's approval of the permit. They didn't present any evidence that this specific project would harm the stream, Gibbs said, and the resident even acknowledged during the lower court hearing that he did not see any change in the stream seven months after the road had been built.
"Everyone knows over a long period of time development will have an impact," the developer's lawyer said. But he added "that falls far short of showing there'll be an impact from this permit."
But Nelson countered that "environmental harm is done over time - not in weeks, days or seven months," and that his clients should have been allowed to make their case in court because they had a "reasonable concern" the project would affect the Patuxent.
The state attorney general's office had opposed the riverkeeper's challenge of the bridge permit in the lower court, a position that irked some environmentalists since Attorney General Douglas Gansler had supported the legislation broadening citizens' ability to challenge permits. But Gansler's office attempted to straddle the issue Monday, as assistant attorney general Adam Snyder argued to the appeals judges that citizens and groups should not have to go through a "mini-trial" of their complaint "just to get into court."
Fred Tutman, the Patuxent Riverkeeper, said after the arguments Monday that much rides on the appeals court's decision. Environmentalists had forged a compromise with the business community over challenging permits, giving up the right to lengthy administrative proceedings in return for what they believed would be an easier path to challenge permits in court. If the state's highest court sides with the developer, he said, "then we've been had."
"It implicates any other case we're likely to work on," Tutman said, "whether we're two miles downstream or 8.5 miles downstream."
A decision is likely weeks or even months from now.
(Patuxent Riverkeeper Fred Tutman, 2005 Baltimore Sun photo by Doug Kapustin)
