A federal judge ruled Friday that a Baltimore air quality ordinance passed last year is invalid, upholding complaints from a city trash incinerator that the law forcing it to dramatically reduce its emissions is “fundamentally flawed.”
Wheelabrator Technologies, whose Southwest Baltimore incinerator receives household trash from across the Baltimore region, had said the city Clean Air Act’s limits on pollutants including nitrogen oxides, sulfur dioxide and mercury would be impossible to meet. And it argued the city didn’t have authority over its emissions, which already are regulated under federal and state law.
U.S. District Court Judge George L. Russell III agreed, saying the city ordinance “second guesses” a complex regulatory scheme already in place and subject to lengthy public review. Allowing a local government to step over federal and state decisions would “undermine” the federal Clean Air Act, the landmark legislation that has served as the framework for policies addressing air pollution for 50 years.
Michael O’Friel, Wheelabrator’s general counsel, said the company is pleased with the ruling and its facility will go on processing the city’s waste, as well as supplying steam used to generate electricity and heat.
“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,” O’Friel said in a statement.
Acting city Solicitor Dana Moore said Friday evening she had not yet reviewed the ruling but acknowledged that the city “did not prevail.”
The ordinance, which was set to take effect in 2022, would have forced incinerators operating in the city to drastically reduce their output of harmful pollutants, and to measure those emissions in real time. Wheelabrator officials said it would have been impossible to retrofit the plant to meet the standards.
Curtis Bay Energy, a medical waste incinerator near the city’s southern border, also would have been held to the new standards and joined Wheelabrator as a plaintiff in the lawsuit challenging the ordinance.
The ruling is a setback for environmentalists who have been pushing the city to reduce its dependence on the Wheelabrator incinerator, and to cut ties with it when its contract to supply waste to the facility expires at the end of 2021. The 35-year-old incinerator is the largest single source of air pollution in the city, and critics say its emissions contribute to high rates of asthma and other respiratory diseases in low-income neighborhoods that surround the facility.
Their efforts had the support of a majority of City Council members, who passed the clean air ordinance last February, and Mayor Bernard C. “Jack” Young, who signed it. Council leaders including President Brandon Scott recently joined with the activists to launch a “zero-waste” plan for the city.
Councilman Ed Reisinger, the lead sponsor of the clean air legislation, called the ruling “a slap in the face to the residents of Baltimore City, especially the southern area where both incinerators are located.”
He said the lawmakers had received legal advice from the state that the legislation fell within the city’s authority before they passed it, so he planned to discuss a possible appeal or additional legislation with colleagues, advocates and the city law department.
Environmentalists also have criticized a state policy that allows the Wheelabrator incinerator and a similar facility in Montgomery County to collect renewable energy subsidies paid for by electricity ratepayers across the state. Some have sought unsuccessfully to change the policy so trash incineration is no longer considered renewable energy, but lawmakers have resisted over concerns about job losses and because the Environmental Protection Agency has said trash incineration produces less greenhouse gases than landfills do.
