Jim Doyle has obtained a very favorable appellate decision and sucessfully represented sand and gravel mining operations against restrictive zoning laws in Queen Anne’s County. These business interests are recognized as economically important to the State. Today’s reported decision by the Court of Special Appeals in Eaststar v. Queen Anne’s County reconizes that fact, and holds that restrictive county laws were pre-empted by the state’s comprehensive surface mining statutes. This is an important pre-emption decision. Had the Court held otherwise, each county would have been free to enact its own set of surface mining laws, thereby wiping out for practical purposes the extensive state statute, and handcuffing an important business sector of our economy.
This week the MD Court of Special Appeals issued a ruling that should alarm businesses in MD. In the interest of full disclosure, I was counsel for the business in the case, and argued the case before the Court. Nonetheless, the ruling certainly re-enforces the anti-business climate in the state.
The case, MD Department of the Environment v. Days Cove Reclamation Co., (no. 1725, Sept. Term, 2008), decided Aug. 30, 2011, concerned a company, Days Cove, that wished to construct and operate a rubblefill in Queen Anne’s County. It began those efforts in 1995. When it began its efforts, it had the necessary approvals and zoning from the county. Over the years, the county changed its position on the rubblefill, and took various actions to stop the project. Days Cove sucessfully challenged those actions.
The County then turned to the General Assembly. In 2007, the county, along with some environmentalists, was successful in enacting a law effectively banning the project. At the time, Days Cove was in the process of proceeding through MDE’s permitting process, a very extensive process that evaluates all aspects of the project. By this time, Days Cove had spent hundreds of thousands of dollars in fees including experts and consultants for studies required as part of the permitting process. It had successfully completed 2 of the 3 phases needed for its permit.
In 2007, the General Assembly stopped that effort in its tracks. Despite the complete lack of any evidence of any environmental issue, and ignoring MDE’s prior advice that similar earlier legislation was unnecessary, the legislature banned such projects in the geographic area where the project was proposed. Days Cove was the only operation referred to during legislative hearings, and in legislative analysis of the bill; and MDE had taken the view that its permitting laws were completely able to evaluate such projects. No other operations were effected by the legislation; in Queen Anne’s county, no other project could possibly be effected since the county had by then banned such operations by zoning law changes. Thus, Days Cove was the only potential permit applicant in QA County, was the only project referrenced in legislative hearings, and was proceeding through a permitting process that MDE believed was completely adequate to deal with any environmental issues.
The MD constitution prohibits “special laws” targeting particular persons or entities. The legislative enactment was challenged by Days Cove as a clear violation of the special law provision. Under the facts of this case, no rational person could believe the this law was targeted at anyone other than Days Cove.
The CSA concluded otherwise, but only through conjecture, through ignoring the legislative history and the MDE views on this legislation, and by completely deferring to the legislative process. The fact that there was nothing to support the view of any environmental risk, and that MDE itself believed its processes were sufficient to assure environmental safety, did not prevent the Court, in total deference to the legislature, from speculating that these projects might involve some environmental risk. It dismissed the clear legislative history singling out Days Cove as irrelevant.
The Court’s ruling is a clear and present danger to businesses looking to permit projects in MD. Years of expenditures, planning, and following state permitting processes guarantee nothing, not even that the state will allow the process to play itself out and reach a conclusion. Every business is at risk as a result of this decision, that the rug can be pulled from beneath it, at the last minute, and after years of efforts. And that it can be done at the whim of the legislative process, without supporting evidence and to appease the voices of the NIMBY’s. Businesses should be warned that the MD courts will not question this process, and in fact will completely defer to it. The “special law” provision of the MD Constitution has effectively been stricken as a protection to businesses, and to anyone, in this state. MD need only look to its own government to explain it anti-business reputation.
In the 2011 General Assembly session, legislation was introduced and supported by the Administration, to prohibit future approval of residential subdivisions that would be served by an on-site sewage disposal system. The proposed legislation stated that on-site sewage disposal systems release pollutants such as nitrogen into groundwaters that eventually found their way into the Chesapeake Bay and Coastal Bays, and that approximately 145,000 new on-site sewage disposal systems would be added over the next 25 years, resulting in a thirty-four percent increase in the total nitrogen load from sewage disposal systems.