Environmental Groups Have Increased Rights To Challenge Permits

The Maryland Court of Appeals recently issued a decision which confirms that an environmental group (or other membership group) can have independent standing to challenge a permit granted by the Department of Environment in Court. The statute reviewed, however, is specific to the Department of the Environment, and the requirement that the group participate at the administrative level remains intact.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Opinion BATTAGLIA, J. *1 In this case, we are asked to determine whether a nonprofit environmental group, Patuxent Riverkeeper,1 Petitioner, (“Riverkeeper”), has standing2 to initiate a judicial review action of a decision of the Respondent, the Maryland Department of the Environment, (“MDE”), to issue a “non-tidal wetlands permit”3 to Petrie/ELG Inglewood, LLC, now known as Woodmore Towne Centre, LLC, Respondent (“Woodmore Towne Centre”),4 in connection with the development of the Woodmore Towne Centre at Glenarden in Prince George’s County. Specifically, Woodmore Towne Centre had applied for the permit to construct a road extension and stream crossing at Ruby Lockhart Boulevard in order to provide primary access into the development. During the administrative proceeding before MDE, Riverkeeper had submitted written comments against the permit, asserting that Woodmore Towne Centre had not demonstrated that the proposed road extension and stream crossing had “no practicable alternative” that would “avoid or result in less adverse impact on nontidal wetlands.”After MDE approved the permit, Riverkeeper initiated a judicial review action in the Circuit Court, after which both MDE and Woodmore Towne Centre filed motions to dismiss for lack of standing.5 The Circuit Court dismissed the judicial review action, and Riverkeeper petitioned this Court for a writ of certiorari, which, prior to any proceedings in the intermediate appellate court, we granted, Patuxent Riverkeeper v. Department of the Environment, 418 Md. 190, 13 A.3d 798 (2011), to address the following question:Did the circuit court err when it interpreted the federal test for standing and held that the Riverkeeper lacked standing to challenge the issuance of a Maryland nontidal wetlands and waterways permit authorizing permanent and temporary impacts to nontidal wetlands and streams where one of Riverkeeper’s members alleged that the permit would result in future and threatened harm to his recreational, aesthetic, and economic interests in the Western Branch watershed and tributary?

We shall hold that Riverkeeper has standing to initiate a judicial review action, because its member, David Linthicum, had alleged sufficient harm to his aesthetic, recreational, and economic interests in connection with the issuance of the non-tidal wetlands permit in issue.Section 5–204(f) of the Environment Article, enacted by Chapters 650 and 651 of the Maryland Laws of 2009 and effective January 1, 2010, enables a person to seek judicial review of an administrative determination by the Maryland Department of the Environment regarding certain environmental permits, including those affecting non-tidal wetlands, if the person satisfies the federal rubric for standing:(f) Judicial review of final determination by Department.—A final determination by the Department on the issuance, denial, renewal, or revision of any permit issued under Title 5, Subtitle 5 or Subtitle 9, § 14–105, § 14–508, § 15–808, or § 16–307 of this article is subject to judicial review at the request of any person that: *2 (i) Meets the threshold standing requirements under federal law; and(ii) 1. Is the applicant; or 2. Participated in a public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.Maryland Code (1982, 2007 Repl.Vol., 2010 Supp.), Section 5–204(f) of the Environment Article.

Prior to this enactment, standing to challenge permitting decisions by MDE was limited to a person who was “aggrieved” by the agency’s action, namely “one whose personal or property rights [were] adversely affected by the decision.” See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967); Sugarloaf Citizens’ Ass’n v. Department of Environment, 344 Md. 271, 288, 686 A.2d 605, 614 (1996) (“[I]n order to be ‘aggrieved’ for purposes of judicial review, a person ordinarily must have an interest ‘such that he is personally and specifically affected in a way different from … the public generally.’ ”) (citations omitted); 120 West Fayette Street, LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 270–71, 964 A.2d 662, 671–72 (2009). Moreover, a group could not establish standing to initiate judicial review of a permitting decision by an administrative agency, unless the organization had a “property interest of its own—separate and distinct from that of its individual members.” Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612, 612 A.2d 241, 249 (1992), quoting Citizens Planning & Housing Ass’n v. County Executive of Baltimore County, 273 Md. 333, 345, 329 A.2d 681, 687 (1974).In enacting Chapters 650 and 651 of the Maryland Laws of 2009, which originated as Senate Bill 1065 and House Bill 1569, the General Assembly embraced the “broader” notion of standing applied in federal courts, to enable both individuals and organizations to challenge environmental permits in judicial review actions, were certain conditions to exist:With respect to cases involving challenges to specific types of permits, Maryland courts have defined “aggrievement” to mean the ownership of property either adjacent to, or within “ ‘sight or sound’ range of the property that is the subject of [the plaintiff’s] complaint.”The Court of Appeals has held that an association lacks standing to sue where it has no property interest of its own, distinct from that of its individual members. Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333, 329 A.2d 681 (1974). In Medical Waste Ass’n [Associates ] v. Maryland Waste Coalition, 327 Md. 596, 612 A.2d 241 (1992), the Court of Appeals stated that if an individual or organization is seeking to redress a public wrong, the individual or organization has no standing unless the wrong suffered is different in character and kind from that suffered by the general public.

Federal law is broader than State law in its determination of standing. Under federal law, a party has standing if its use and enjoyment of the area is affected by the challenged action/decision or if the party has a particular interest in the property affected. Federal law also makes little distinction between individual and group standing. *3 Environmental Matters Committee Floor Report on House Bill 1569, at 4 (2009).6The touchstone Supreme Court case involving environmental standing, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), drew the federal landscape in environmental actions. In that case, a judicial review action to enforce a permit authorizing the limited discharge of pollutants, pursuant to the Clean Water Act, 33 U.S.C. § 1342, the Court determined that to satisfy standing in an environmental action, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180–81, 120 S.Ct. at 704, 145 L.Ed.2d at 627, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992). An environmental group can satisfy standing federally if “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, 528 U.S. at 181, 120 S.Ct. at 704, 145 L.Ed.2d at 627.

In Friends of the Earth, the Court emphasized that injury in fact has included a negative impact on the organizational representatives’ recreational or aesthetic appreciation of the affected area, in that case the demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants. 528 U.S. at 181–82, 120 S.Ct. at 704–705, 145 L.Ed.2d at 627–28. In addition, the Supreme Court determined that a person may suffer an injury in fact when his economic interests are negatively impacted, for instance, lower home prices due to proximity to a hazardous waste incinerator. Id. at 182–83, 120 S.Ct. at 705, 145 L.Ed.2d at 628. The Court noted that an injury to aesthetic, recreational, or economic interests need not be consummated, so long as an individual can demonstrate reasonable concerns about the effects of the challenged activity. Id. at 183–84, 120 S.Ct. at 705–706, 145 L.Ed.2d at 628–29.Such aesthetic, recreational, or economic interests or values, however, must be based upon a demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future. In Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1150, 173 L.Ed.2d 1, 10 (2009), the Supreme Court reasoned that an organizational representative’s affidavit indicating a desire to “visit several unnamed National Forests in the future” was not sufficiently particularized to establish a cognizable aesthetic or recreational interest. Moreover, asserting a past injury to aesthetic or recreational interests, arising for example, from “past … development on Forest Service land,” without demonstrating a continuing or future harm, further does not suffice. Id. at ––––, 129 S.Ct. at 1150, 173 L.Ed.2d at 9–10. The Court also has opined that a genuine nexus must exist between the alleged injury and the challenged conduct, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992), and that the remedy requested must “effectively abate[ ] [illegal] conduct and prevent [ ] its recurrence.” Friends of the Earth, 528 U.S. at 185–86, 120 S.Ct. at 706, 145 L.Ed.2d at 630.7 *4 At the time the new standing test was embraced by the Maryland Legislature, not only had the Supreme Court spoken, but other federal appellate courts already had an opportunity to interpret the tenets of the Supreme Court cases.

The application of these precepts prior to the enactment of Section 5–204(f) of the Environment Article in 2009 illustrates the boundaries of standing in environmental cases to which the General Assembly had referred when it enacted the statute.8 In Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008), the Court of Appeals for the Seventh Circuit determined that a Sierra Club member adequately alleged an injury by asserting that she and her family had taken trips to “fish, kayak, camp, and enjoy the natural beauty and clean environment” of a lake, located three miles from the site of a proposed power plant, and that if the plant were built, she would cease her recreational trips. Similarly, in American Canoe Ass’n, v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542 (6th Cir.2004), the Court of Appeals for the Sixth Circuit reasoned that an environmental group representative had demonstrated a sufficient injury when he alleged that he previously recreated in a river near a water treatment plant, but that he presently refused to do so, because of pollution caused by discharges from the plant. In so doing, federal appellate courts have noted that a plaintiff may express reasonable concerns about the future impacts of the challenged activity. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (reasoning an environmental group member “need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act”).The injury alleged must share a specific nexus with the harm asserted. In Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000), the Court of Appeals for the Ninth Circuit determined that the plaintiff had adequately demonstrated such a nexus by indicating that sediments in defendant’s marine leasehold contained elevated concentrations of pollutants, that defendant had discharged such pollutants, and that defendant’s marine leasehold was “devoid of life.” In contrast, in Center for Biological Diversity v. Lueckel, 417 F.3d 532, 540 (6th Cir.2005), the Sixth Circuit reasoned that although the environmental group representatives had shown that they had suffered concrete injuries to their aesthetic, recreational, and scientific interests in the scenic rivers in question due to commercial logging, the plaintiffs had failed to demonstrate the requisite connection because they had not referred to specific evidence that the United States Forest Service’s failure to enact a “comprehensive resource management plan” had caused the approval of the environmentally harmful projects. *5 According to the federal appellate court, an aggrieved party also must show that a favorable decision will likely, not merely speculatively, relieve the injury alleged. Alleging a previous injury, for instance, without referencing a continuing or future harm, will not suffice. Lueckel, 417 F.3d at 537 (reasoning that “plaintiffs … must show that actual, site-specific activities are diminishing or threaten to diminish their members’ enjoyment of the designated river segments”).9

The parties in the present case differ, though, not regarding the test for standing, but in its application to the factual circumstances presented. Riverkeeper asserts that its member, Mr. Linthicum, suffered an injury in fact, because his aesthetic, recreational, and economic interests in the Patuxent River, particularly the Western Branch watershed,10 have been jeopardized by the road extension and stream crossing allowed by the permit. In particular, Mr. Linthicum asserts that the upstream impacts caused by the crossing will cause “nitrogen and other pollutants” to leach into waters downstream. Woodmore Towne Centre counters that Mr. Linthicum failed to satisfy the standing inquiry, because he failed to demonstrate that the issuance of the permit has negatively impacted his paddling and cartography activities on the Western Branch watershed.11In his affidavit, Mr. Linthicum described the aesthetic and recreational interests he has in paddling, wading, and clearing branches in the Western Branch of the Patuxent River:5. I visit the Patuxent River almost every other day. I have visited and will continue to visit the Western Branch every few months. When visiting the Western Branch, I paddle along the tributary, and also wade in the water to clear out branches for the purpose of waterway maintenance and navigation. I have been paddling, wading, and clearing branches and other blockages in the Western Branch for nearly ten years. Beyond my recreational interests in the Western Branch tributary and watershed, I also have aesthetic and environmental interests in the Western Branch, as the river and watershed is much healthier and cleaner than surrounding watersheds such as the Anacostia watershed.6. The area of the Western Branch tributary and watershed that I most often visit is downstream from the location of the Woodmore Towne Center Project. I sometimes paddle in the Western Branch as far north as Upper Marlboro, which is approximately 8.5 miles downstream from the areas of wetlands and streams that are impacted by the Woodmore Towne Center.He further described the negative impact of the issuance of the MDE permit on the wetlands and streams in the Western Branch, where he most often paddles and clears blockages in the waterway, jeopardizing his aesthetic and recreational interests:7. The wetlands permit pertaining to the Woodmore Towne Center will cause impacts to wetlands and streams in the Western Branch watershed. These impacts will ultimately have a direct effect on the watershed and the river downstream, where I most often paddle and clear blockages in the waterway. Specifically, the stream impacted by the Ruby Lockhart Boulevard extension on the Subject Property is the north fork of the Southwest Branch of the Patuxent River (this stream is marked “S” on a map that I prepared for the Subject Property, attached as Exhibit C). This stream runs southward from the Subject Property through developed and undeveloped land before ultimately joining the Western Branch tributary approximately five miles downstream. Smaller drainages on the north end of the Subject Property (marked as “W” on Exhibit C) also connect directly with the Western Branch and the Patuxent River itself. These smaller drainages flow into Bald Hill Branch approximately 3/4 mile from the Subject Property. Bald Hill Branch then joins the Western Branch just over a mile further downstream. *6 8. The health of the Western Branch, including the area where I most often paddle, wade, and clear trees and other blockages, will suffer as a direct result of the impacts to the connected streams and tributaries just a few miles upstream at the Woodmore Towne Center site.9. Diverting and/or compromising the streams on the Subject Property can affect the flow rate and the ecology of the tributaries of the Patuxent River. Moreover, drainage of stormwater from the impervious surfaces of the Woodmore development into the surrounding streams and watershed will further degrade the water quality of the Western Branch. Western Branch is a system already in decline due to the vast amount of paving, construction, channelization and other human intervention in its natural functions.

Like many tributaries, streams, and creeks elsewhere in Prince George’s County, Western Branch fails to meet Federal water quality standards, and appears to be approaching the tipping point of no return.10. The impacts to wetlands on the Subject Property will also have a negative effect on my activities downstream in the Western Branch. Wetlands provide recharge and storage of surplus water during storm events, which can lessen the impacts of flooding and property damage to downstream neighbors. Wetlands serve as natural “sponges” to absorb manmade toxins and poisons that leach from surrounding contaminated runoff caused by paved surfaces, trash, and chemicals applied to urbanized lands. The loss of the natural wetlands in a river system eventually leads to the death and desertification of a river’s tributaries and takes an equivalent toll on the waters of the main channel.11. I have reviewed recent scientific and academic literature that has discussed the connection, both in Maryland and in general, between urbanization, impacts to streams and headwaters, and the deleterious effects on watersheds and rivers downstream. One of these articles discussing this connection states: “Headwater systems are important sources of sediments, water, nutrients, and organic matter for downstream reaches. Despite the significant roles of headwater systems within the channel network, the ecological values of headwater systems are underestimated, and their processes have been extensively modified by land use.”See Takashi Gomi, Roy C. Sidle & John S. Richardson, Understanding Processes and Downstream Linkages of Headwater Systems, BioScience, Vol. 52, No. 10, Oct. 2002, at 914. I have also read that “[the] natural dendritic properties of stream networks play an intrinsic role in the delivery of nitrogen and other pollutants to downstream receiving waters from headwater locations throughout watersheds.” See Richard B. Alexander, Elizabeth W. Boyer, Richard A. Smith, Gregory E. Schwarz & Richard B. Moore, The Role of Headwater Streams in Downstream Water Quality, Journal of the American Water Resources Association, Vol. 43, No. 1, Feb. 2007, at 57. In the context of streams and wetlands, the term “dendritic” refers to the branch-like characteristics of upstream headwaters, which then funnel into a single stream or river downstream, as is the case with the Western Branch watershed and tributary. *7 (internal footnote omitted).On the basis of Mr. Linthicum’s affidavit, as well as the testimony he presented at a hearing on the motions to dismiss,12 the Circuit Court found that Mr. Linthicum is “a frequent recreational paddler” on the Western Branch of the Patuxent River and also has an “aesthetic interest in the beauty of the river and the cleanliness of its water.”

The court further found that Mr. Linthicum has “an economic interest in navigating the river, [because] he charts its tributaries to produce maps and guides that he sells to the Riverkeeper and others.”Despite these findings, the judge dismissed the judicial review action for lack of standing, determining that the injury Mr. Linthicum alleged on behalf of Riverkeeper was merely “conjectural or hypothetical”:On the other hand, Mr. Linthicum has never visited the actual site of the permit at issue and has never paddled on the tributary that has been altered by development of the Towne Center, nor has he testified to an intention or desire to do so. He has not seen any effects, other than seasonal ones, on the parts of the river he does travel since the completion of the work at the Towne Center. Indeed, he did not even realize there had been work impacting a wetland until a few weeks before offering his testimony to the Court, long after that work had been completed.[13]In other words, completion of the work authorized by the wetlands permit issued by MDE has not affected Mr. Linthicum’s day to day life on the river in any manner whatever. Instead, Mr. Linthicum claims that the Towne Center development will “ultimately” impact the watershed downriver where he carries on his business. Affidavit of David Linthicum ¶ 7. This is precisely the conjectural or hypothetical injury forbidden by Summers, supra. Mr.

Linthicum has a good-faith belief that continued urbanization of Prince George’s County will one day result in the erosion of the wetlands and waterways that he loves. As he testified, he fears the “death by a thousand cuts.” This is not a sufficient injury in fact to establish standing under federal law and Md.Code, Enviro. § 5–204(f).We disagree with the Circuit Court’s legal assessment.14 Mr. Linthicum alleged, and the Circuit Court found, that he had adequately asserted demonstrable aesthetic, recreational, and economic interests in the Western Branch as an avid paddler and mapmaker. The Circuit Court determined that the harm alleged, however, was not sufficiently concrete nor imminent, because Mr. Linthicum claimed that the permit allowing the road expansion and stream crossing would “ultimately” impact the Western Branch watershed downriver “where he carries on his business.” In so doing, the judge failed to credit the reasonable concern that Mr. Linthicum manifested about the future harm to the ecology of the Western Branch that would result from “diverting and/or compromising” upriver streams. *8 The injury suffered by Mr. Linthicum, moreover, shares a sufficient nexus to the issuance of the non-tidal wetlands permit, because Mr. Linthicum alleged, referring to scientific articles as well as his own experiences, that stream crossings at headwaters and wetlands, such as that constructed at Ruby Lockhart Boulevard, can cause negative affects downstream on the Western Branch watershed. Finally, at a hearing before the Circuit Court regarding the motions to dismiss, Frederick Tutman, Chief Executive Officer of Riverkeeper, described methods to abate the harm caused by the issuance of the permit, including rescission of the permit, as well as more intensive mitigation efforts:I would say in addition to the rescission of the permit, I think look at broader or more specific mitigation in line with the scope of the impacts [,] [b]ut, also, I think something of great value is being taken away from citizens adjacent to this site and the county and I don’t think it’s being put back. I think the quality of the mitigation that’s been approved by the State [,] I don’t think begins to really get to the heart of what’s being taken away.

As a result, the motions to dismiss for lack of standing on the part of Riverkeeper should not have been granted, and the judicial review action should be permitted to proceed.JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT, PETRIE/ELG INGLEWOOD, LLC, ALSO KNOWN AS WOODMORE TOWNE CENTRE, LLC.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)