Incinerator foes denied day in court


In most directions, the landscape around the Montgomery County village of Dickerson, near the Monocacy River's merge into the Potomac, remains among Maryland's scenic delights.

Old stone fences, historic barns and farm manors, along with hedgerows, stream valley thickets and country roads bordered by old maples and dark cedars, all lend a pleasing personality to the rolling Piedmont farmland.

Sugar Loaf Mountain rears 1,280 feet astride the Montgomery-Frederick county border. Quite magically, the mountain vanishes and reappears as you dip and twist along the country roads.

Cycling through the region nearly a century ago, Gordon Strong, heir to a railroad fortune, fell under this same spell, and spent the rest of his life buying the entire mountain.

The same beauty also struck Harold Ickes, Franklin Roosevelt's first Interior secretary, as a perfect place to acquire for a presidential retreat -- only 35 miles from downtown Washington.

Gordon Strong steered the president to another spot, now Camp David. Sugar Loaf, preserved by a trust, remains open to the public.

In more recent decades, there have been new, less salutary alterations to the landscape.

Three stacks from a power plant rise, respectively, 450, 450 and 700 feet; and nearby farmland is being carved into fly ash landfills that rise as high as the surrounding hills. Huge power lines march off through the countryside in three ugly rights of way.

Next to the power plant, more than 20 acres of concrete pads and roofed pavilions form Montgomery County's composting facility, stacked with long windrows of rotting leaves collected from suburban yards down county.

Many other threatening projects have been proposed -- a giant regional sewage plant, an even taller power plant stack, countless housing developments, an outer Capital Beltway.

Citizens here will tell you that given the explosive growth of suburban Washington, they've done OK to retain as much of the region as they have.

But residents say that of all the issues, win or lose, the most bitter, frustrating, expensive and time-consuming one is the one the state won't even let them fight. It involves the latest industrial stack, rising a mere 280 feet high, amid new, large buildings between the power plant and the leaf composter.

It is a garbage incinerator, first conceived decades ago as the final solution for the county's municipal solid waste.

Nationwide, the blush is fading from such solutions, as incineration runs into problems of air quality, high costs, fears of toxic fallout and charges that it discourages recycling.

At a time when recycling is burgeoning in Montgomery, and the county is producing less trash than was projected during the booming 1980s, many think the incinerator is a white elephant in the making.

The new county executive, Douglas Duncan, campaigned on a promise to re-evaluate it; but with some $265 million invested, and start-up just months away, abandonment seems unlikely.

The crusade against the incinerator began in 1986, when the county made a political decision to re-site the controversial facility from heavily populated Gaithersburg to sparsely populated Dickerson.

Concerned about the impacts of toxic chemicals, air pollution, noise and traffic, a coalition of local landowners, citizens' groups and environmental organizations objected unsuccessfully to state environmental permits allowing the incinerator to operate.

After exhausting all administrative appeals, landowners filed suit Montgomery Circuit Court in 1992.

There, they were introduced to the stringent fashion in which Maryland decides who can challenge its environmental decisions.

Their suit was denied because the court ruled they lacked legal standing to pursue judicial review of the state's actions.

The opponents -- even an organic farmer 2,000 feet away from the incinerator -- had not shown, the court ruled, that they would be at risk of "special harm" different from that of any citizen.

Neither did any of them satisfy the court that they owned property directly adjacent to the incinerator. (A narrow road and short field separate the organic farmer from the facility.)

Last week, the state's Court of Special Appeals upheld the Circuit Court's decision that the opponents lacked legal standing.

"It is pretty hard to prove we're specially damaged before the incinerator is up and running, at which point it will be too late," said Jane Hunter, whose family farms 2,500 acres in the Sugar Loaf region.

She estimated that incinerator opponents have spent at least $250,000, and their pro-bono lawyers have donated about $250,000 worth of their time.

"But we're going to take it the next step," to the Maryland Court of Appeals, she said.

"This standing issue goes way beyond us; it has become a quest for everyone's right to defend themselves from bad state decisions."

Indeed, 14 Maryland legislators this year are co-sponsoring a bill introduced last week by Sen. Brian E.Frosh, a Montgomery County Democrat, to change the state's standing requirements.

The legislators and environmental groups think the Sugar Loaf citizens' experience is only one of several where standing was unjustly (if legally) denied.

Others denied it include a woman who said state-approved bridge construction upstream of her property was polluting the water; citizens who wanted to stop a shopping center from destroying wetlands; and an environmental group that wanted to challenge test drilling for oil and gas near the Potomac.

Broader standing has been opposed in the past by business groups and state agencies, fearful that lawsuits would clog or paralyze decision-making on permits.

But that paralysis simply has not materialized in states like Michigan, with much more inclusive standards for who can sue.

Federal environmental permits also include broader standing provisions, as do environmental permits in Pennsylvania.

Maryland's standard clearly is too strict; nor is relaxing it likely to result in lots of frivolous suits.

We may be in a litigious age, with multimillion-dollar medical malpractice suits and personal injury claims and the like.

But those are different animals than challenges to permit decisions regarding air and water quality, where there is little prospect of financial gain -- only of preserving health and quality of life.

After a day with Jane Hunter and other citizens of the Sugar Loaf region, I can't tell you whether they are right and the government is wrong about the incinerator and the environment.

But I can tell you that the citizens deserve their day in court -- not years of being papered over and ground down by legal technicalities.

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