A federal judge has thrown out air pollution limits Baltimore imposed on incinerators last year, agreeing with the companies that the legislation preempts state and federal authority.

The Baltimore Clean Air Act “undermines the Maryland Department of the Environment’s authority to decide the best way to achieve compliance” with national air quality standards, U.S. District Judge George L. Russell III ruled yesterday.

The tougher air standards would have applied to Wheelabrator Technologies, operator of the BRESCO incinerator in South Baltimore, where much of the city’s trash is burned, and co-plaintiff Curtis Bay Energy, a medical waste incinerator also located in South Baltimore.

By making operating the incinerators more costly, the act “upsets the state’s goal of setting standards that are not more restrictive than necessary” – Judge Russell.

Wheelabrator had argued that it could not afford to make changes at the 35-year-old incinerator that would allow it to meet the act’s restrictions on pollutants, including nitrogen oxides, sulfur dioxide and mercury.

For Russell, that was another reason to invalidate the City Council law.

“Because the BCAA will make operation of Wheelabrator and Curtis Bay more costly, the BCAA upsets the state’s goal of setting standards that are not more restrictive than necessary to achieve” the National Ambient Air Quality Standards, he wrote in a 24-page ruling.

Setback for Environmentalists

The decision was a blow to environmental and community activists, who have been pushing the city and state for years to take action against the incinerators in order to improve air quality and lower rates of asthma and other respiratory disease in the surrounding communities.

The Wheelabrator plant, a grim city landmark next to Interstate 95, is Baltimore’s biggest source of air pollution.

“Maryland law clearly authorizes local governments to ‘set emission standards or ambient air quality standards’ so long as the local standards are no less stringent than the state,” said attorney Mike Ewall, executive director of the environmental group, Energy Justice Network.

“The court got it wrong. They’re essentially gutting state law by interpreting anything stricter as being illegal,” Ewall added in a statement.

“This is a slap in the face to the city residents suffering from asthma and other health problems” – Councilman Ed Reisinger.

The companies, in their April 2019 complaint, had asked Russell to reject the proposed law because it unfairly targeted them.

He rejected that argument. The companies assert that the act “singles out Wheelabrator Baltimore and Curtis Bay for disparate treatment and is designed and intended to force the[ir] closure, thereby violating their right to equal protection under the law,” Russell wrote.

“Unsubstantiated allegations that legislative action is motivated by animosity fall short of stating an equal protection claim,” he concluded.

Call for Appeal

The Energy Justice Network’s statement included a denunciation of the ruling by 10th District Councilman Ed Reisinger, lead sponsor of the Clean Air Act.

“This is a slap in the face to the city residents suffering from asthma and other health problems,” Reisinger said.

It also included a call by Councilwoman Mary Pat Clarke for the Young administration to appeal the ruling.

“We need the city to appeal this decision,” she said. “It’s a matter of the health and well-being of us all.”

Previous Brew Coverage

• Pugh says she will sign incinerator clean-up bill (2/13/19)

• With incinerator crackdown bill passed, spotlight swings to the mayor (2/12/20)

• Full-court press by lobbyists on City Council incinerator bill (2/11/19)

• Measuring smog and particulates, report ranks Baltimore air pollution among worst in U.S. (6/27/18)