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.

The thrust of the briefing was to look at the sufficiency of waste water treatment systems, and the impact of HB 1107 restrictions on those systems. MDP reported that local governments are concerned that they are running out of WWTP capacity, making it more difficult to achieve smart growth as they reach capacity limits. Restrictions such as those in HB 1107 would, if enacted, shift new households from septic areas to WWTP-sheds. The task force also heard testimony on comparative costs between sewer and septic. Many questions were raised concerning assumptions for the comparisons, and for the practicality and engineering reality of WWTP expansions. Also, more widespread re-use of wastewater was discussed. The task force will meet again on Sept. 12.