Litigators in Beveridge & Diamond’s Washington, DC, and Baltimore, MD offices secured an important published preemption ruling in U.S. District Court in Maryland on March 27. Wheelabrator Baltimore, L.P. v. Mayor and City Council of Baltimore, 449 F. Supp. 3d 549 (D. Md. 2020). Judge George Russell III's decision struck down the “Baltimore Clean Air Act” (BCAA), an ordinance that imposed unprecedented air emissions limits on certain industrial facilities, and in particular targeted a major waste to energy facility (Wheelabrator Baltimore) and a major medical waste incinerator (Curtis Bay Medical Waste Services). The City ordinance sought to force the facilities to shut down or install costly pollution control equipment to meet air emission limits that would have been the most stringent ever enacted in the country, far exceeding federal and state requirements.

Plaintiffs Wheelabrator, Curtis Bay, the National Waste & Recycling Association, the Energy Recovery Council, and TMS Hauling challenged the ordinance in a 59-page complaint filed in April 2019. Wheelabrator manages a large percentage of the Baltimore area’s non-hazardous solid waste, including much of the City’s, converting it into electricity and steam power for thousands of homes and businesses.

Judge Russell's 24-page opinion held that Baltimore’s attempt to impose detailed pollution requirements for Wheelabrator and Curtis Bay conflicted with existing state regulations and the Maryland Department of the Environment (MDE) issued Title V permit already in place. The Court wrote that “the Ordinance conflicts with state law by prohibiting—and, in some cases, criminalizing—conduct that is permitted under the facilities’ existing Title V permits. . . . Put simply, the Ordinance is conflict preempted because it virtually invalidates the facilities’ state-issued Title V permits. . . . Further, the BCAA is conflict preempted because it ‘second guesses’ the complex federal and state regulatory scheme for air emissions.”

The court reviewed the many stringent existing federal and state clean air regulations for the facility that protect public health and observed that “[a]llowing a locality to undermine this regulatory scheme by substituting its judgment in place of decisions by the federal and state government is not consistent with the goals of the federal Clean Air Act and its corresponding state statutes.”

Wheelabrator Technologies Senior Vice President and General Counsel Michael O’Friel commented that “[w]e are pleased with the court’s ruling, which reflects our position that the Baltimore ordinance conflicts with both state and federal regulatory authority,” said. “As we have argued from the time this ordinance was first proposed – and as the court has made clear in its ruling – the city legislation is fundamentally flawed. As the court pointed out in its opinion, emissions standards are established by the United States Environmental Protection Agency ‘after a lengthy public rulemaking process and enforced through intricate permitting systems administered by the states.’ The court’s opinion goes on to specifically note: ‘Allowing a locality to undermine this regulatory scheme by substituting its judgment in place of decisions by the federal and state government is not consistent with the goals of (the federal CAA) and its corresponding state statutes.’ We appreciate the court’s detailed review of this matter and look forward to continuing to provide the essential service of responsible waste management in the Baltimore area by converting everyday waste into clean, renewable energy.”

B&D’s team included Washington, DC principals Jimmy Slaughter, David Friedland, Tony Michaels, and Josh Van Eaton, Baltimore principal Roy Prather, and Boston associate Meghan Morgan.

The National Waste & Recycling Association issued a press release commending the ruling.

View news coverage of this decision in Law360 (subscription required), The Baltimore Sun, Baltimore Brew, Waste360, WasteDive, and The Daily Record.