Outcome is in line with DCA’s friend-of-the-court brief
The Maryland Supreme Court on Wednesday upheld a livestock farm water quality permit written by the Maryland Department of the Environment that had been challenged in court by environmental activists. The appellate court’s ruling also found that MDE’s best management practices-based regulatory framework for the state’s permit was “reasonable” and “consistent with federal and state law.”
The permit in question, Maryland’s 2019 general discharge permit for animal feeding operations (AFOs) and concentrated animal feeding operations (CAFOs), had been challenged by the Assateague Coastal Trust, which filed a petition in Montgomery County Circuit Court in July 2020 for judicial review of the permit. ACT argued that the permit didn’t do enough to regulate ammonia emissions from farms, and said MDE should go much further, possibly even requiring farm-by-farm installation of expensive new equipment. A Montgomery County judge sided with ACT in March 2021, ordering MDE to rewrite the permit with stricter standards, but MDE appealed that decision, and the Maryland Supreme Court agreed to hear the appeal.
When ACT filed its petition and the Montgomery County judge granted it, DCA recognized this case could have serious implications for chicken growers and the chicken community as a whole. To advocate for our members in the closely-watched legal fight, DCA filed a friend-of-the-court brief arguing ACT’s reading of the law was wrong, and that the MDE-approved permit was in line with federal law governing farms and clean water regulations.
“We’re glad the Maryland Supreme Court recognized this challenge to the 2019 permit lacked merit and mischaracterized the law,” said Holly Porter, DCA’s executive director. “This is the third consecutive time these activists have tried and failed to persuade courts to overrule science-based, legally sound water quality regulations.”
ACT, the court said, failed to show MDE’s decision-making around the CAFO permit was “arbitrary and capricious.” In fact, the court’s opinion said, Maryland regulators designed “the same general discharge permit framework established by federal regulations,” and so the court has no reason to upend it through judicial review.
On the matter of ammonia emissions, the court found Maryland’s permit sufficiently controlled ammonia pollution through site-specific measures when MDE found they would be called for, and adherence to best management practices required by the general permit. ACT’s argument otherwise “is in direct conflict with the evidence in the administrative record,” the court ruled.
The court ruling comes as agricultural stakeholders in the Chesapeake Bay watershed have reduced their annual nutrient inputs to the Bay, eliminating 39 million pounds of nitrogen and 3.5 million pounds of phosphorus since 1985. Developed areas like cities and suburbs, meanwhile, have increased their annual nutrient contributions to the watershed. In 1985, developed areas were responsible for an estimated 15 percent of nitrogen loads to the Bay; in 2021, they were responsible for an estimated 26 percent of the Bay’s nitrogen pollution.
The opinion in Maryland Department of the Environment v. Assateague Coastal Trust was written by Justice Brynja M. Booth, who has served on Maryland’s highest court since 2019. It’s the third time in recent years ACT has mounted a failed challenge to the MDE general discharge permit; a previous effort to overturn the 2009 permit was “rejected at all levels,” the court noted in Wednesday’s opinion, and a challenge to the 2014 permit was also turned back by the courts.
