Waste facility foes contend they lack legal recourse

March 20, 1994|By Timothy B. Wheeler | Timothy B. Wheeler,Sun Staff Writer

Upset about government-sanctioned incinerators, landfills and potentially polluting development in their back yards, angry Marylanders are petitioning the General Assembly to make it easier for them to take their cases to court.

Residents, community associations and environmental groups complain that they often find themselves denied a hearing when they object to government permits allowing waste disposal facilities or construction that they fear will harm farms, streams and wetlands.

The disillusioned activists say that happens despite a 1978 state law saying courts are "an appropriate forum for seeking protection of the environment."

Consider these cases, discussed at a recent legislative hearing in Annapolis:

* A Montgomery County family that farms 232 acres about 2,000 feet from a proposed trash incinerator in Dickerson fears that the farm's crops could be damaged by emissions from the county-financed facility. Yet the family was denied a legal right, or standing, to challenge a state permit for the facility.

* A Prince George's County landowner, fearful that a proposed road downstream from her property would block yellow perch and herring from their spawning grounds upstream, was not allowed to appeal the project. The state Department of Natural Resources declared that only downstream property owners had grounds to challenge stream crossing permits.

* Residents of the Millersville area filed suit to close an Anne Arundel County landfill in their neighborhood after learning that the facility had a 17-year record of permit violations. A judge threw out their case, ruling they had no standing to sue even though some of the plaintiffs lived near the landfill.

"It really hurts your heart," said Robert H. McKay, one of the Millersville residents. "You go through school and learn about the democratic system. . . . Yet when it's turned over to the agencies, they run amok."

Now some two dozen community and environmental groups have rallied behind a bill that would broaden citizens' rights to appeal state and local permits.

Under the measure, they could demand formal administrative hearings and even go to court to try to overturn an agency's decision.

"Citizens are being shut out of the process," said Sen. Gerald W. Winegrad, an Anne Arundel Democrat, one of the bill's chief sponsors.

Maryland is one of the most restrictive states in the country when it comes to granting residents legal standing to protest environmental permits, Mr. Winegrad said.

But state and local officials and a broad array of business interests oppose the bill, sponsored by Mr. Winegrad and Sen. Bernie Fowler, a southern Maryland Democrat.

While some officials acknowledge that citizens occasionally are denied a fair hearing, they warn that the legislation would make it too easy for citizens seeking to keep necessary but unpopular projects out of their back yards.

Administrative 'nightmare'

Lawyers and lobbyists for industry and developers likewise warn of "an administrative and judicial nightmare," in which courts would be clogged with "frivolous suits" and worthwhile projects would be destroyed by lengthy and complicated appeals.

Under the bill, "Virtually any citizen could sue to stop a project simply because they do not like the decision made by the agency," said Lawrence R. Liebesman, a lawyer for the Maryland Builders Association.

pTC Under current law, businesses and developers are free to go to court whenever state and local agencies deny them the permits they need to expand or operate.

But courts often bar citizens from bringing suit, declaring that they have failed to show that a government decision would inflict some "special damage" on them that is different from whatever harm might be suffered by the public at large.

The government is presumed to be protecting the interests of the public.

Courts also have ruled that civic associations and environmental groups have no legal standing to sue on behalf of their members, unless the groups can show they have a "property interest" of their own, separate from that of individual members.

Activists contend that recent court rulings have undermined the intent of the General Assembly when it passed the Maryland Environmental Standing Act in 1978. That law says that "an unreasonably strict procedural definition of 'standing to sue' is not in the public interest."

Emotional complaints heard

At the hearing, lawmakers heard from citizens all over the state, each with an emotional complaint about being rebuffed by state and local officials when they objected to projects that they feared could harm them or the environment. In some cases, adjoining property owners have been refused appeals.

"We've lost faith. . . . Don't come up our way in a county or state car," said James B. "Flip" Evans. His family's farm in Dickerson is across a road from where Montgomery County plans to build a trash incinerator.

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