In 1970, George McGovern wrote that "access to the courts of the United States is the most effective means for citizens to participate directly in environmental decisions and may be the only way to assure that democratic processes are brought to bear on environmental problems."² For individuals to realize McGovern's vision of citizen legal and judicial activism they must have "standing" in a dispute.

"Standing" according to a definition authored by former Supreme Court Justice William O. Douglas, means an individual or a group has sufficient interest in a matter to seek protection through litigation through the courts. Specifically, the Douglas test says that to establish standing, (1) an individual or group must allege that the challenged action has caused "injury" (current or future), in fact and (2) that the interests to be protected are "within the zone of interest" regulated by the statue in question.³ (For example, consumers, for the most part, don't sue for protection under a law protecting the Bay.) The purpose of the "standing" requirement is to ensure that courts will not have to decide cases of a "hypothetical," "abstract"⁴ or "ill defined nature."⁵

Over the last few General Assembly sessions, legislation designed to limit the "standing" of Marylanders in legal fights to protect the environment has been regularly introduced. These legislative efforts are part of a two decade long assault by the legislature, the courts and the Maryland Department of the Environment (MDE) to limit the ability of Maryland citizens to use the courts to protect environmental and human health.

The Duty to Heal Thy Environment.

In 1973, the Maryland General Assembly passed the Maryland Environmental Policy Act which declared that "each person has a fundamental and inalienable right to a healthful environment and each person has a responsibility to contribute to the protection, preservation and enhancement of the environment."⁶ The General Assembly did not, however, intend for this declaration to confer blanket standing upon Maryland residents for the purposes of environmental protection. Instead, state agencies were created to do this work.

Up until 1978, Maryland courts consistenly found "that in order for a person to challenge an action by a public official acting under a statue, there must be an allegation of a special interest rather than the mere general interest of a member of the public."⁷

Likewise, under Maryland common law principles, for an organization to have standing it must have a "property interest of its own - separate and distinct from that of its individual members."⁸ This limitation has acted to curtail the number of suits brought by Maryland environmental organizations and is why two neighbors to the municipal waste incinerator at Dickerson, Maryland were added as plaintiffs to the Sugarloaf Citizens Association suit in 1990.

The Maryland Environmental Standing Act (MESA).

In 1978, the Maryland General Assembly appeared to address the severe common law limitations on standing by enacting the Maryland Environmental Standing Act (MESA). Section 1-502 of MESA states, "the courts of the State of Maryland are an appropriate forum for seeking protection of the environment and that an unreasonably strict procedural definition of 'standing to sue' in environmental matters is not in the public interest." The Act, in effect, said it was giving citizens the tools to meet their responsibility (under Maryland Environmental Policy Act) "to contribute to the protection, preservation and enhancement of the environment."

But with MESA, as with many laws passed by the General Assembly, appearance and reality may be different. Although, the Act appeared to convey standing to all residents, in fact, suits could be brought only by residents of the county affected by the environmental action and could be tried, initially, only in the local circuit court. This limitation increased the likelihood that the economic power of the interests threatening the environment could be brought into play against citizen plaintiffs.

In addition, MESA said suits could be brought against officers or agencies of the state or other political subdivisions only for failure to perform a nondiscretionary duty to enforce an environmental standard. The initial bill introduced into the Senate in 1968 contained language that would allow residents to sue private parties as well. But this provision was dropped after industry and developers protested it would lead to a blizzard of frivolous lawsuits. (In Michigan, where similar legislation contained no such restriction, there was no increase in so-called frivolous lawsuits.)

Finally, MESA limited remedies to "an injunction or other equitable relief" to halt environmental damage. Citizens suing under MESA could not recover monetary damages.

The Administrative Procedure Act (APA).

Even with these limitations, MESA might have served as a powerful tool for citizen activists seeking environmental enforcement and protection. It has not lived up to this promise, in some large measure, because of the Administrative Procedure Act (APA) and because of the way the courts have interpreted the relationship between the two laws.

APA was passed by the General Assembly "to ensure the right of all persons to be treated in a fair and unbiased manner in their efforts to resolve disputes in administrative proceedings."⁹ APA establishes the definitions and the rules for disputes in administrative proceeding within state government agencies. MESA deals with challenges to state decisions in the courts.

Of special concern to Maryland environmental activists are APA's rules governing "contested case hearings." A contested case hearing is very much like a trial conducted before a board, a commission or an agency head. Plaintiffs can take depositions, offer evidence (including hearsay evidence), present and cross examine witness and appeal the contested case decision to the courts for judicial review. In this way, a contested case hearing offers citizens a far more substantive and effective process to challenge a decision than a public hearing.

In a "public hearing" (as opposed to a "contested case hearing"), Marylanders can speak, briefly, and enter statements into the administrative record. This citizen input may be considered by the hearing authority and that's about it. Public hearings, while important to activists for a number of reasons, have only occasionally changed MDE and other state or local agency decisions. More often than not, the hearing officers listen sympathetically and then make their decision on the basis of other economic and political factors. For this reason, environmental activists have sought contested case hearings over public hearings in their challenges to state environmental permit and enforcement actions.

However, contested case hearings are specifically excluded from most environmental permitting matters by Section 1-601, Subtitle 6 of the Maryland Code which states, "Notwithstanding any other provision of law to the contrary, the Department [Maryland Department of the Environment] is not required to provide an opportunity for a contested case hearing to any other than the applicant in connection with a permit...." In other words, when it comes to the environmental permitting process in Maryland, the only party who can demand a contested case hearing is the developer or corporation seeking the permit. Citizens have no standing under APA.

Reconciling MESA and APA.

But wait! What about the Maryland Environmental Standings Act? Didn't it give Marylanders the right to sue MDE and other agencies during the administrative process for not protecting the environment?

Two landmark law suits in the early 1990s, answered these questions by dramatically limiting citizen standing to challenge state and local environmental decisions under MESA and APA.

In Sugarloaf Citizens Association v. Northeast Maryland Waste Disposal Authority et al 323 Md. 641, activists challenged a decision by Montgomery County and the Northeast Authority to permit a municipal solid waste incinerator at Dickerson, Maryland near Sugar Loaf Mountain. The citizen plaintiffs intervened in the PSD (Prevention of Significant Deterioration) permit process of the three step permit process required by federal law. (PSD permit, air (construction) permit and operating permit.). The case went to the Maryland Court of Appeals.

"The issue in this case," the Appeals Court wrote, "is whether the Air Management Administration, upon request, is required to hold a contested case hearing by Maryland's APA."¹⁰

The Appeals Court ruled that "Under COMAR 26.11.02.10C and the statutory permit scheme as a whole, the hearing required at the PSD permit stage is not a contested hearing."¹¹ The court said the appropriate stage for a contested case hearing was the issuance of the construction permit.

Finally, the court reaffirmed APA's limitation on contested case hearings writing, "It is well established, however, that the APA itself does not grant a right to a hearing. That right must come from another source." Could MESA be that "other source"?

The court addressed this issue in a second case, Maryland Waste Associates Inc. v. Maryland Waste Coalition, Inc. (357 Md. 596). The case was a straightforward challenge to the permits for the construction and operation of an infectious medical waste incinerator in Baltimore – the same incinerator that now can accept waste from virtually anywhere in the United States, thanks to a March, 1997 vote by the Baltimore City Council.

The Court of Appeals wrote in its decision, "We hold that MESA does not ordinarily grant organizations who do not have standing under the common law principles reflected in the judicial review section of the Administrative Procedure Act, standing to participate in judicial review of an administrative decision." The court's decision was based on the very narrow grounds that MESA made no specific mention of review of administrative decisions. The standing door slammed shut.

Pretend! Pretend! Our addictive relationship to non-functioning procedures.

The Maryland Department of the Environment joined with the incinerator operators in both cases to fight to deny environmentalists standing. Over the last two decades, the MDE and the Department of Natural Resources have consistently opposed the right of citizens to seek judicial review of permitting decisions. The state is clearly not interested in citizen involvement in environmental enforcement other than polite participation in public hearings or USEPA mandated citizen listening sessions. Indeed, the record indicates the MDE and environmentally destructive corporate interests count on ordinary Free State politeness, on citizen willingness to play by procedures that ultimately fail to protect the environment.

The regulatory system isn't functioning to protect the environment, in the opinion of many Maryland residents who have tried to fulfill their responsibility to protect, preserve and enhance the environment through regulatory administrative procedures. As this article documents, the government has further marginalized activists by eliminating recourse through the courts.

The whole regulatory scheme has become an elaborate game of pretend. MDE and the state pretend the current regulatory processes protect both environmental health and Marylanders democratic right/responsibility to participate in that protection. Activists, in turn, often pretend their participation in the various stages of the permit process will actually STOP environmental destruction (although in a few cases, just enough to keep popular hopes alive, citizen participation does SLOW that destruction.)

As the competition for Maryland's remaining natural resources intensifies, as the need to disposal of increasing amounts of human, toxic and other waste grows, corporate interests will seek to further close down any possibility of true citizen oversight and enforcement through the courts. The vision of George McGovern quoted at the beginning of this article will not be realized.

If Maryland's environment is to escape being bled to death through legally issued permits for its destruction, the fundamental legal standing of Maryland residents to sue to stop that destruction needs to be established and expanded. Our environment--indeed, our democracy--is at stake.

(EDITOR'S NOTE: An earlier version of this article appeared in Conservation Report, the Maryland Conservation Council's weekly publication during the General Assembly session.)

ENDNOTES

1. McGovern, Forward to "Defending the Environment", p. xiii (1970).

2. Data Processing Service Organization, Inc. v. Camp, 397 U.S. 150 (1970).

3. Aetna Life Insurance Company v. Hayworth, 300 U.S. 727, 731 (1937).

4. United States Public Workers of America v. Mitchell, 330 U.S. 75,90 (1947)

5. MD. NAT, RES. CODE ANN. 1-301 TO 1-305 (1974).

6. Kerpelman v. Board of Public Workers, 261 Md. at p. 443, 276 A. 2d. at p. 60.

7. Citizens Planning and House Ass'n v. County Executive, 273 Md. 333,345, 329 A.2d 681, 687-688 (1974)

8. Administrative Procedure Act, Section 10-102 (1)

9. Sugarloaf Citizens Association et al v. Northeast Maryland Waste Disposal Authority et al, 323 Md. 641, p. 1118.

10. Ibid. p. 1121.

Ad*dic*tion watch (e dik'shen woch) n. v. The State of environmental organizations being addicted to money or recognition from government agencies that do not enforce environmental laws adequately or sources of funding that directly or indirectly demand restrictions of environmental goals and actions.