Friday, April 22, 2011

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].

[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

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