What Maryland Stakeholders Told Us About the State's Clean Water Act Enforcement Program

by Yee Huang

In preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:

Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions. One official noted that the Chesapeake Bay is a driver for enforcement because it gives MDE and Maryland a higher profile than other regions with less famous or less historically important waterways. Yet another environmental interviewee said that the long history of Bay restoration was an obstacle to an active and vigorous enforcement program. “The Bay restoration effort has been going on for so long now, and there’s a mentality that there’s nothing that will help all that much, so just plug away and be satisfied.”

Impartiality of State Courts. One surprising view to emerge from the interviews was a deep skepticism regarding the impartiality of state courts and the ability to obtain a fair trial at the state court level. At least five officials and environmental interviewees said that state courts were not the ideal venue to hear civil or criminal environmental enforcement actions. Some officials preferred administrative hearings, and some environmental interviewees expressed a preference for citizen suits because they are heard in federal court. One environmentalist said: “Some cases you can’t get anywhere in state court. You need to be in federal court.” Another alleged that state court judges are “unbelievably predisposed to defendants” and “hostile to MDE.”

Perception of Citizen Suits. Citizen suits, which allow citizens to act as private attorneys general to supplement the enforcement process, are authorized by almost all federal environmental statutes, including the Clean Water Act. The interviews revealed that the perceptions and skepticism of citizen suits are widespread not only among the regulated community but also among the general public. Not surprisingly, interviewees from the regulated community said that citizen suits “make it difficult to work things out” and perceive the suits as “witch hunts” with a high potential for untrained citizens to “lay the blame unnecessarily.” Some environmental interviewees lamented the impact of the regulated community’s perception of citizen suits on the public’s perception. One official agreed that the public has a negative, if uninformed, perception of citizen suits as a “political tool” for environmental groups to raise their profile or gain membership. While industry and the public may view environmental groups as “loose cannons filing lawsuits willy-nilly,” citizen suits are a valuable source of enforcement assistance when certain violations may elude government action.

The Office of the Attorney General. Some interviewees attributed part of the blame to Maryland's Office of the Attorney General (OAG), citing the need for greater involvement at the permitting stage. At least two interviewees emphasized the need for OAG to review permits for legal issues before they are issued. According to one environmental interviewee, “the OAG seems surprised when issues of legality are raised.” Another environmental interviewee commented that if the OAG is “going to have to defend state decisions, they need to have a more active role in reviewing the legality of permits.” This interviewee acknowledged that the OAG cannot review every permit but that “some are getting through that are clearly illegal.” This perspective was refuted by one official, who explained that some groups may feel that “MDE’s permits aren’t as environmentally protective as they could be, but the permits are legally sustainable. It’s not the OAG’s role to say to MDE, ‘Be tougher.’”

The purpose in conducting these interviews was to help understand how various aspects of MDE’s enforcement program actually operate on the ground, apart from how they’re officially said to work. The interviews provided great insight and contrasting perspectives, and a summary of the interviews is contained in the report. Together the interviews call into question some basic assumptions about Maryland’s environmental reputation and key components of the enforcement process.

© 2016 The Center for Progressive Reform