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March 1, 2021 by Katlyn Schmitt

Achieving Meaningful Accountability for Polluters in Maryland

Businesses that violate environmental laws and permits damage our air, land, and water, sometimes irreparably. Yet too often, these polluters aren't held accountable for harming the environment and public health. In Maryland, state officials don't respond to all violations, and, when they do, they aren't always successful. Even when they are successful, fines and other penalties don't necessarily result in behavior change. As a result, Maryland polluters are largely off the hook for the "externalities" of doing business.

To deter pollution, we need true accountability. We must ensure polluters pay for all harm done, whether to the environment, humans, and other species and habitats. Unfortunately, Maryland, like most other states, is a long way from achieving this goal. At CPR, we're tracking bills in the Maryland legislature that, if passed, would set the state on a path to greater compliance with environmental laws. These bills would:

  • Enforce data transparency

    Environmental enforcement and compliance rates in Maryland have fallen to record lows over the last decade. The Maryland Department of the Environment's (MDE) 2020 Enforcement & Compliance Report reflects that downward enforcement trend. Some top findings:

    • In 2020, MDE inspected 43 percent fewer sites and took one-third fewer enforcement actions than it did in 2019.

    • MDE's Water and Science administration inspected nearly 400 fewer sites and collected about half as much in penalties, dropping from $1 million in 2019 to $530,000 in 2020. (Numbers have been adjusted according to the Consumer Price Index.)

    • MDE increased inspections, audits, and spot checks for pollution in surface water discharge in 2020 but cut enforcement actions by more than half.

    • MDE took only four enforcement actions for violations of erosion and sediment control rules in 2020, an alarmingly low number. In 2010, MDE took 96 such actions, the high watermark over the last 11 years.

    Part of the problem is that MDE has lost over 13 percent of its staff over the last 20 years. Given the Herculean task of overseeing close to 209,000 permitted and regulated entities, the agency lacks capacity to ensure appropriate inspection, compliance, and enforcement measures.

    Maryland Senate Bill 324 and House Bill 204 would provide greater access to environmental enforcement data, which the public needs to be an informed ally in the enforcement of our environmental laws. These bills would also help the public understand compliance trends and cumulative harms to the environment due to violations and know whether the state has taken action against suspected polluters. If enacted, these bills would enable Maryland residents and advocates to watchdog the state's environmental efforts, which is especially important given inadequate staffing and enforcement at the state level. Both bills are awaiting votes in their respective committees.

  • Expand 'citizen intervention' in Clean Water Act cases

    Private citizens play a key role in the enforcement of the Clean Water Act. Two important mechanisms that enable them to do so include their ability to file suit against a polluter and to join a government lawsuit against a polluter (aka "citizen intervention").

    But since a 2010 Maryland appellate court decision, residents and environmental organizations have lacked access to the courts through citizen intervention. Maryland Senate Bill 334 and House Bill 76 would reinstate citizens' right to intervene in state court proceedings in Maryland, a right enjoyed by residents of virtually every other state. The House of Delegates has approved the bill (92-40), and the Senate version is awaiting committee action.

  • Increase equitable access to public information

    Residents and organizations often face challenges that prevent equitable access to public records. Some can't access requested information in a timely manner, and some are charged exorbitant fees for public information. Likewise, fee waiver requests are often denied to organizations that merit them.

    A few years ago, Maryland created a Public Information Act (PIA) ombudsman to oversee disputes between government agencies and information requestors. While the ombudsman plays an important role in ensuring fair outcomes, Maryland's PIA law should be modernized to address ongoing challenges.

    Senate Bill 449 and House Bill 183 would increase equitable access to public information housed in state and local agencies. It would give the PIA Compliance Board — an independent state agency — broader authority over fee disputes, including denials of fee waivers. These bills would also codify an integrated PIA complaint resolution process with the PIA ombudsman and require agencies to streamline and publish PIA disclosure policies, among other things. Both bills are awaiting votes in their respective committees.

  • Establish a constitutional right to a healthy and healthful environment

    Maryland's patchwork of "environmental standing" laws — which determine who has the right to sue to protect the environment —grant standing to Marylanders only in limited situations. Standing is often limited to people who are directly impacted by government decisions and actions and those who experience specific harms to property or finances or who have been denied permits. For those who don't live next to impacted areas or operations, standing is often difficult, if not impossible, to establish.

    Senate Bill 151 and House Bill 82 would create a constitutional right to a healthy and healthful environment and grant Marylanders the legal power to act on it. If passed, this legislation would make environmental protection mandatory — not just an aspirational goal that can be amended at any point in time.

    Under these bills, Maryland officials would be constitutionally obligated to protect the environment and its impact on public health and legally prevented from permitting egregious harm to public natural resources. Ultimately, they would give Marylanders another important tool to hold polluters accountable. Both bills are awaiting votes in their respective committees.

CPR is following these important bills as they move through the Maryland state legislature this session, which concludes on April 12. For updates, check back here, subscribe to our blog digests, and follow us on Facebook, Twitter, Instagram, and LinkedIn.

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Feb. 25, 2021 by Allison Stevens
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Seven years ago, public officials in cash-strapped Flint, Michigan, cut city costs by tapping the Flint River as a source of public drinking water.

So began the most egregious example of environmental injustice in recent U.S. history, according to Paul Mohai, a founder of the movement for environmental justice and a professor at the University of Michigan School for Environment and Sustainability.

When they made the switch, city officials didn’t properly treat the new water, which allowed lead from corroded pipes, bacteria, and other contaminants to leach into the public drinking water supply. Flint residents, who are disproportionately low-income and Black, immediately raised alarms about the fetid, brown water flowing out of their faucets and cited health problems, such as hair loss and rashes.

But the city didn’t officially acknowledge the problem or begin to take decisive action until a year and a half …

Feb. 16, 2021 by David Flores, Katlyn Schmitt
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When it comes to addressing climate-related flooding, Maryland has made progress.

In 2014, it created a "Coast Smart Council" at the state's Department of Natural Resources. Councilmembers, representing government, academia, business, advocacy, and other sectors, work together to develop science-backed resources and rules that govern development of state-funded projects in coastal and flood-prone areas.

Meanwhile, state agencies and local jurisdictions work under the council's auspices and with the benefit of resources. such as local government studies and plans to address climate-related flooding. They also have a new interactive mapping tool — the Climate Ready Action Boundary — to help local governments and the public explore flood-prone boundaries in Maryland. Those who use the tool can make informed decisions about development in areas vulnerable to flooding or sea level rise. Any state development built within the flood-prone boundary must be designed with flood-resilient features.

But these actions don't come close …

Feb. 15, 2021 by David Flores, Katlyn Schmitt
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As a coastal state, Maryland is especially vulnerable to climate and ocean change — but important environmental protections are woefully out of date, endangering Marylanders' health, safety, economic welfare, and natural resources.

Maryland could take a step to rectify that this year. State lawmakers are advancing important legislation that would bring outdated water pollution rules up to speed and protect Marylanders and the environment.

Senate Bill 227 would require stormwater design standards and permits to reflect current rainfall patterns and put the state on a trajectory to assess and regularly update them in the future. We need appropriately designed stormwater practices to capture and treat greater rainfall volumes to reduce pollutants, like nitrogen and phosphorus, that contaminate water when it rains. And we need the standards to mitigate flooding and other physical impacts.

Hurricanes are increasing in frequency, size, strength, and rainfall volume, and they're following increasingly northward …

Feb. 4, 2021 by Katlyn Schmitt
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Virginia's General Assembly is more than halfway through its legislative session — and state lawmakers are considering several important bills that would address environmental justice, pipelines, climate change, and public health. If passed, these bills will establish lasting environmental, health, and climate change protections for Virginia and its communities. The bills we're watching would:

  • Turn the Commonwealth's stated environmental justice goals into a reality

    The Omnibus Environmental Justice Bill (House Bill 2074 and Senate Bill 1318) would direct Virginia's state and local agencies to adopt agency-specific environmental justice policies by October. Specifically, it would require agencies to evaluate the consequences of covered actions (such as approving a new natural gas pipeline or granting a permit to construct one) on low-income communities and communities of color, which face disproportionate harm from polluters.

    The bill would also require agencies to consider the cumulative impact of their actions on …

Jan. 22, 2021 by Katlyn Schmitt
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The Maryland General Assembly is back in session — and we at the Center for Progressive Reform are tracking a number of bills that, if passed, will have a lasting impact on the people of Maryland and their environment. Several could also spur other states to improve their own environmental and public health protections.

We’re watching bills that would:

  • Ensure clean drinking water

    Everyone needs and deserves safe drinking water. Yet well owners in Maryland are largely left on their own to ensure their water is safe. Some 2 million Marylanders rely on well water as their primary water source, yet many well owners incorrectly believe their well water is safe to drink. Many don’t test their water annually or understand the importance of doing so.

    The Maryland Private Well Safety Program would address these problems. This would help well owners cover the costs of testing …

Jan. 12, 2021 by Victor Flatt
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One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable …

Oct. 22, 2020 by Katlyn Schmitt
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Earlier this month, Congress overwhelmingly passed America's Conservation Enhancement Act (ACE). The legislation's dozen-plus conservation initiatives include reauthorizations for important programs that help protect the Chesapeake Bay and wetlands across the country.

Among other provisions, the legislative package authorizes $92 million in annual funding for the U.S. Environmental Protection Agency’s (EPA) Chesapeake Bay Program through 2025, a $7 million annual increase. The program provides funding for states, local governments, and other partners to take measures that improve Bay water quality, and it also helps coordinate restoration efforts in the watershed. While Congress has appropriated funds to the program every year since it was created in 1987, its authorization expired in 2005. This reauthorization and increase in funding are a good sign for the future of Bay cleanup efforts, provided, of course, that Congress follows through with appropriations at the authorized level.

ACE also established a …

May 1, 2020 by Karrigan Bork, Thomas Harter, Steph Tai
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This post was originally published on California WaterBlog. Reprinted with permission.

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges. In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to …

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CPR HOMEPAGE
More on CPR's Work & Scholars.
March 1, 2021

Achieving Meaningful Accountability for Polluters in Maryland

Feb. 25, 2021

Clean Water Is a Human Right. Let’s Start Treating It Like One.

Feb. 16, 2021

Maryland Should Prevent Flood Loss on Public and Private Land

Feb. 15, 2021

It's Time to Update Maryland's Outdated Water Pollution Laws

Feb. 4, 2021

Old Dominion Weighs Bills to Curb Climate Change, Protect Health and Environment

Jan. 22, 2021

Maryland Considers Bills to Protect Public, Environmental Health

Jan. 12, 2021

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement