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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. 26, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In the wake of the Texas blackouts, we're seeing a number of familiar moves to deflect blame by the usual suspects — politicians, regulators, and CEOs. These evasive tactics all begin with a core truth: Eliminating all risk is impossible and would be too expensive even if it weren't. But then they spin that truth in various ways. The result is to obscure responsibility for the disaster and the steps that should be taken going forward.

Here are some of the most common dodges — not counting such crass moves as blaming everything on the Green New Deal or the media.

Dodge #1: No one could have foreseen this event! This often sounds reasonable. How could anyone have foreseen that New Orleans' levees would simply collapse, or that a historic tsunami would hit the nuclear reactors at Fukushima …

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. 24, 2021 by Robert Verchick
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Since I began serving on Louisiana’s Climate Initiatives Task Force, charged with finding a way to zero out net greenhouse-gas emissions by 2050, there is one question I get from people more than any other: “C’mon, are you serious?”

It’s not that Louisianans don’t see the need. Sea-level rise could soon swallow our coast, and hurricanes souped up by climate change are now the new normal.

The problem is how we see ourselves. Louisiana, I’m reminded, is an oil-and-gas state. Whatever were we thinking?

My quick response is Louisiana is really an energy state, with more sun and offshore wind than most of our peers.

My longer answer is that I really don’t know how serious we are. But I’ve started following a trio of issues that could tip the scale …

Feb. 23, 2021 by Richard E. Levy, Robert Glicksman
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This op-ed was originally published in The Hill.

Since taking office, President Biden has pursued an active agenda to address many urgent matters that require his prompt attention. We hope one important initiative does not get lost in transition: restoring the norms of good governance.

During his term in office, President Trump sought to exert absolute control over the apparatus of government by undercutting normal operating practices and systematically dismantling protections for officials whose duty to the public might override their personal loyalty to him. It is no secret that Trump demanded personal loyalty from executive branch officials and fired those, like Attorney General Jeff Sessions, who prioritized complying with the law over following his orders. He has taken many actions to strip, override and undermine essential protections for our nation’s public servants.

Biden has already taken some steps to address these concerns. On Jan. 22 …

Feb. 22, 2021 by Dan Rohlf
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As the U.S. Senate considers President Joe Biden’s Cabinet nominees, one stands out as much for the position he was appointed to as for his impressive qualifications.

Two days before his inauguration, Biden announced that he planned to elevate the director of the Office of Science and Technology Policy (OSTP), often referred to as the president’s science advisor, to Cabinet rank. The move underlines Biden’s break with the previous administration’s de-emphasis and politicization of science, which downplayed climate change, sought to slash climate-related research spending, and crafted rules designed to limit the influence of science in agency decisionmaking.

Created by Congress in 1976 to help the president and White House staff steer the country in an increasingly complex world, OSTP leads cross-government efforts to incorporate scientific and technological developments into policy and budgetary decisions. During the Trump administration, OSTP staff dropped by …

Feb. 22, 2021 by Alexandra Klass
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This post was originally published on Lawfare. Reprinted with permission.

It is now a week out from the start of the massive Texas grid failure that has resulted in numerous deaths; millions of people plunged into darkness; scores of communities without clean water or heat in record cold temperatures; and billions of dollars in catastrophic damage to homes, businesses and the physical infrastructure that supports them. Critical questions surround the causes of this massive disaster and how to plan for the future so that a tragedy of this scale does not happen again.

At this point, there are many facts that Americans already know. Contrary to the spurious claims by Gov. Greg Abbott as well as numerous right-wing politicians and pundits, freezing wind turbines and the state’s history of supporting renewable energy development did not cause the grid to fail. Indeed, wind turbines outperformed grid operator …

Feb. 19, 2021 by Maggie Dewane
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Intersectional environmentalism is a relatively new phrase that refers to a more inclusive form of environmentalism, one that ties anti-racist principles into sectors that have long profited from overlooking or ignoring historically disenfranchised populations. 

According to youth activist Leah Thomas, “It brings injustices done to the most vulnerable communities, and the earth, to the forefront and does not minimize or silence social inequality. Intersectional environmentalism advocates for justice for people and the planet.”

Nearly 20 years ago, the Center for Progressive Reform (CPR) was founded on a vision that government could be reimagined and reformed so that it serves all people — regardless of income, background, race, or religion — and our planet. Intersectional environmentalism is that vision: thriving communities on a resilient planet. 

It is also the theme of CPR’s recent Climate, Energy, Justice video series and corresponding report. CPR takes issue with a business-as-usual approach to …

Feb. 18, 2021 by Amy Sinden
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In the midst of this long dark winter, it's heartening to see the Biden administration lay out a bold agenda for a more secure, fair, and sustainable future. Holding the Biden administration to its promise to reform the regulatory process to "ensure swift and effective federal action" to "improve the lives of the American people" is a crucial part of that effort. From her perch on a key congressional committee with oversight over agencies and the rulemaking process, the Delaware Valley's own Rep. Mary Gay Scanlon is well-positioned to do just that.

While not on most people's radar, the system of centralized regulatory review poses a potentially significant obstacle to President Joe Biden's ambitious agenda. Originally created by President Ronald Reagan, this process functions as the bureaucratic instantiation of the "job-killing regulations" myth that Reagan so successfully infused …

Feb. 18, 2021 by Minor Sinclair
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As many of you know, I started as the Center for Progressive Reform's new executive director this month. I am thrilled to join CPR in this historic moment, to commit the next stage of my life to fight for the integrity and strength of our democracy, and to establish, as FDR said 90 years ago, "the purpose of government to see that not only the legitimate interests of the few are protected but that the welfare and rights of the many are conserved."

CPR's mission speaks to me personally. My own winding story saw me raised in the American South, defending refugees and human rights in Central America in the '80s, living in Cuba in the '90s, and, for the past 15 years, working at Oxfam to defend workers' rights and socially vulnerable communities in the United States. The fault lines of race and entitlement that …

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