Two environmental groups filed suit Thursday against Gov. Larry Hogan and his administration for blocking a clean-air regulation developed by his predecessor that would have required coal-burning power plants in Maryland to curb their emissions of smog-forming pollution.
In court documents filed in Anne Arundel County Circuit Court in Annapolis, the Chesapeake chapter of Physicians for Social Responsibility and Maryland Sierra Club contend the state Division of Documents acted illegally in withholding publication of the power plant rule finalized under former Gov. Martin O'Malley.
That rule would have required a handfull of power plants to reduce emissions of nitrogen oxides 48 percent by 2020. Nitrogen oxides mix with other pollution on hot, sunny days to form ozone, which irritates the lungs and can trigger asthma and other breathing difficulties.
The Maryland Department of the Environment adopted the power plant regulation at the end of the O'Malley administration, and it was scheduled to take effect once it was published in the Maryland Register on Jan. 23.
Within hours after he took office Jan. 21, Hogan ordered the Division of Documents in the secretary of state's office not to publish the rule so it could be reexamined. It would have required power plants to install costly new pollution controls, switch to cleaner-burning natural gas or shut down.
The owner of two affected Baltimore area plants accepted the rule, but NRG, owner of two Washington-area plants, objected. The New Jersey-based company contended the rule was unnecessary, given pollution reductions made elsewhere, and that it would force it to shutter its plants, putting hundreds out of work.
The regulation was supported by environmental groups, who note that ozone pollution, often called smog, continues to pose health problems in the Baltimore and Washington areas. Ozone reached "Code Orange" levels on Thursday for the first time this year - high enough to pose a health risk for children and other sensitive groups. It was predicted to reach Code Orange on Friday as well.
"By blocking these critical public health protections, Gov. Hogan acted contrary to both public opinion and the law," said Michael Soules, a lawyer for Earthjustice, an environmental group that brought the suit on behalf of the two groups. "The law is clear: once these safeguards were adopted, they were official and the new Governor could not lawfully block them."
MDE issued a new emergency regulation in April that requires affected power plants to maximize their existing pollution controls effective immediately. But the agency said it was reopening its review of what further reductions might be required. MDE officials have said they plan to decide later this year.
A Hogan spokeswoman and MDE Secretary Ben Grumbles defended the administration's actions.
"We are absolutely committed to winning the battle on smog and doing it in the smartest and fairest way possible," Grumbles said. "We have a very clear plan: enforcing the brand new regulation for 2015, issuing in the coming months strong and protective regulations for 2016 and beyond and leveraging significant progress in upwind states that put Maryland at risk.
"The public health protections associated with these long-term emissions reductions will be equal to or greater than those in the previously proposed regulations," Grumbles vowed.
The groups contend that's delaying help for those harmed by air pollution. They insist the administration acted illegally in pulling back the finalized rule, and ask the court to require the O'Malley era rule be published and enforced.
The Hogan administration appears to have an attorney general's opinion in its corner. At the request of a Republican lawmaker concerned about another O'Malley regulation, a senior lawyer in the AG's office predicted late last year that a Maryland judge would uphold the right of a governor or state agency to withdraw an already-adopted regulation before it has been published in the Maryland Register.
But Sandra Benson Brantley, counsel to the General Assembly, noted there have been no court cases in Maryland to test that question, and some would argue a regulation that's been adopted can only be withdrawn after formal notice is given, with time for lawmakers and the public to comment. She based her advice in large part on court rulings in other states.