Environmental Standing Law in Maryland

On January 1, 2010, legislation amending the Maryland Code took effect that alters the Maryland permit appeals procedure and the standards (standing) regarding who can appeal. The legislation eliminated the contested administrative hearings process for many State air, water and waste permits and licenses that had been in effect in Maryland since the early 1990s.

Before this amendment, permit challenges were generally limited to parties having direct financial interests. Now, Maryland follows the more lenient federal standing rules and allows any party (including citizens’ groups and nonprofit associations) that, “participated in a public participation process through the submission of written or oral comments” to request a judicial review of a final agency determination in the Maryland Circuit Court in the county where the proposed activity will occur within 30 days of the decision.

The review is limited to the administrative record and only to objections raised during the public comment period unless the petitioner demonstrates that:

(i) The objections were not reasonably ascertainable during the comment period; or

(ii) grounds for the objections arose after the comment period.

See §1-601 et seq. of the Environmental Article of the Annotated Code of Maryland.

Given the more lenient standing provisions enabled by this amendment, permit applicants should consider how to work with the local citizens and other interested groups before requesting a permit. Working things out with these affected stakeholders can be more cost-effective[1] than litigation and produce better results[2].

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[1] See, for example Communication and Stakeholder Involvement Guidebook for Cement Facilities prepared by the Battelle Memorial Institute and Environmental Resources Management as part of the Sustainable Cement project sponsored by the World Business Council for Sustainable Development and a consortium of international cement companies

[2]“[T]here is evidence that stakeholder participation can enhance the quality of environmental decisions by considering more comprehensive information inputs. However, the quality of decisions made through stakeholder participation is strongly dependent on the nature of the process leading to them. Governance of Environmental risk: New approaches to Managing Stakeholder Involvement in the Journal of Environmental Management, Vol. 90 issue 4 pp. 1567 -1575

Lawyer Jokes.

Here is one that will make everyone laugh - and then shake their heads in dismay. The attorneys for a defendant filed a motion in response to objections from the plaintiffs requesting a delay of a scheduled trial on the basis that the wife of one of the defense lawyers was scheduled to deliver their child during the trial. This request was opposed by counsel for plaintiffs.

The Court’s decision, unsurprisingly, is a pretty hard shot at the plaintiff’s opposition to the motion. The Order granting the motion opens this way:

“He who is his own lawyer has a fool for a client” is one of every lawyer’s favorite proverbs. Among the several reasons why this is undoubtedly true, is that lawyers are trained to handle disputes skillfully but without the emotional rancor that will mask the actual parties’ reason and good sense.

Regrettably, many attorneys lose sight of their role as professionals, and personalize the dispute; converting the parties’ disagreement into a lawyers’ spat. This is unfortunate, and unprofessional, but sadly not uncommon. Before the Court, however, is an uncommon example of this unhappy trend.

See the legal humor blog Lowering the Bar; Legal Humor. Seriously. for the story about this case.

I have blogged repeatedly about New Lawyering and the changes coming in the practice of law. John Lande’s new book Lawyering with Planned Early Negotiation is a great example of the approach attorneys should be taking in representing clients.

This case is an example of Old Lawyering.

I hope the clients don’t have to pay for the costs of the motion.

The New Lawyer and Planned Early Negotiation

Professor John Lande, Director of the Program in Dispute Resolution at the University of Missouri School of Law –ranked by U.S. News as one of the best dispute resolution law school programs in the country -- has written a new book for lawyers entitled Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.

Professor Lande describes the book on his website as

…written primarily for lawyers who want to improve their effectiveness….This guide shows how you can be more successful using Planned Early Negotiation (PEN). The strategies in this book can help you become a more effective negotiator, which can increase your professional satisfaction, generate good will, relieve stress, and increase your effective billing rates with creative fee arrangements. The book includes advice from interviews of outstanding lawyers who handle all kinds of cases….With PEN, you serve your clients’ interests by planning to negotiate from the outset. Litigation is still possible, but it isn’t the first step.

This book is based on research on mediation and Cooperative and Collaborative Practice. It suggests that lawyers take the initiative to jointly manage their cases. This involves exchanging the information you need to settle instead of waiting to respond to courts or mediators. It suggests procedures to plan constructive negotiations - and deal with problems that commonly arise.

I have previously blogged about the changes coming and why the practice of law is moving from the “lawyer as warrior” paradigm to the much more complex New Lawyer roles of counselor, negotiator, mediator and meta-expert.

Professor Lande has written a “how to” guide for lawyers to assist them to become effective practicing New Lawyers.

The American Bar Association published the book, which includes a CD with practical information and forms. Here are links to the table of contents and a detailed summary of the book. For more information and to order the book, click here.

This is exactly the kind of information the profession needs. I’ve already ordered my copy. Thank you John Lande.

Italian Lawyers Go On Strike to Oppose Mediation

I had to blog about this.

The Wall Street Journal has a blog about lawyers in Italy preparing to go out on strike to protest a new law requiring mediation in commercial cases. Whoa.

I understand that the legal system, culture and economics are very different in Italy compared to the U.S. But striking to oppose a public policy fostering mediation?

As Michael McIlwrath posted in Karl Bayer’s wonderful blog Disputing, Italian lawyers must fear that ADR really does stand for “Alarming Drop in Revenues” for attorneys. The Italian bar has proposed changes to the law that, according to McIlwrath, would substantially cripple it. They want the law to not require mediation but make it optional. And they want the law to require “technical” (read: legal) assistance at the mediation.

Many mediators in this country have suggested (often over a glass or two of scotch at conferences of mediators) that U.S. lawyers fear mediation because it would reduce their fees (where do you think “Alarming Drop of Revenues” came from?). And some lawyers have said the same.

I disagree. I find that many attorneys in the U.S. are receptive, and even embrace, mediation as an attractive alternative to litigation. Over the years, attorneys have told me that mediation in this country is often the only remedy their clients will accept because litigation is so expensive. And so very few cases in this country actually go to trial, so lawyers aren’t necessarily as tied to litigation for their economic livelihood as perhaps is the case in Italy. Attorneys in the U.S. have come to recognize the benefits of mediation and are responding to the market demand from their clients.

However, this story does point out one thing – mediation must be gaining wider acceptance and becoming more prevalent to be seen as such a serious threat by Italian lawyers. Not such a bad thing!