Chesapeake Physicians for Social Responsibility and Sierra Club, represented by Earthjustice, filed suit today asserting that Governor Larry Hogan and the Maryland Division of State Documents unlawfully blocked a new clean air safeguard that would protect Marylanders suffering from asthma and other harmful effects of ozone pollution, commonly known as “smog.”

The safeguard—known as the NOx Regulation—would protect public health by reducing nitrogen dioxide pollution from coal-fired power plants that leads to harmful ozone levels like the Code Orange Day predicted for Baltimore today. Prince George’s County, Baltimore City and County, and Anne Arundel County received an “F” from the American Lung Association for High Ozone Days; Montgomery County got a “D”. Children, the elderly, minorities and low income households are especially sensitive to ozone pollution; often bearing a disproportionate asthma burden. Ozone is known to make asthma symptoms worse and increase sensitivity to asthma triggers.

“These protections would result in fewer new cases of asthma in children, fewer heart attacks in adults, and fewer deaths from respiratory illness. They would allow those suffering from this pollution to breathe a little easier,” said Gwen DuBois, an internist at Sinai Hospital of Baltimore, a member of the board of Chesapeake Physicians for Social Responsibility and a member of the public health committee of The Maryland State Medical Society.

The Maryland Department of the Environment (MDE) adopted the safeguards on January 16, 2015, after a more than year-long stakeholder process. Even though all but one stakeholder including the owner of three Maryland coal plants supported it, Governor Hogan essentially tossed out the result of this process without explanation. By unlawfully blocking the regulation, Gov. Hogan forced MDE to issue an emergency regulation last month to reduce NOx emissions for this year’s ozone season. Although his administration has claimed that it will start a new process to consider long-term NOx reductions, even if such a process occurs it would simply duplicate the one MDE’s already conducted last year and could lead to a far less protective standard.

Today’s lawsuit seeks to require the Division of State Documents to publish the NOx Regulation and to prohibit Governor Hogan from further blocking it.

“By blocking these critical public health protections, Gov. Hogan acted contrary to both public opinion and the law,” said Michael Soules, Earthjustice’s lead counsel on this case. “The law is clear: once these safeguards were adopted, they were official and the new Governor could not lawfully block them.”

“We’re going to hold the Governor accountable in court, because no one should have to breathe dirty air when the solutions already exist,” said Maryland Sierra Club Director Josh Tulkin. “For the sake of our health, these dirty plants need to install state-of-the-art pollution controls, repower to cleaner fuel, or retire by the end of the decade.”

BACKGROUND

The NOx Regulations would require coal-fired power plants in Maryland to install and use the same types of modern pollution controls that are more prevalent on coal plants in states throughout the country, including traditional coal states such as West Virginia, Alabama and Kentucky. Less than half of the coal units in Maryland are equipped with such modern controls.

After a lengthy stakeholder process that garnered the support of public health advocates, Maryland’s independent air quality advisory council, The Maryland State Medical Society and the owner of three large coal plants in the state, the Maryland Department of the Environment finalized the standards, known as the nitrogen oxide (NOx) Reasonably Available Control Technology (RACT) rule. That rule was adopted by the agency on January 16, 2015 and submitted that same day for publication in the Maryland Register.

On Gov. Hogan’s first day in office, however, he issued a directive to the Division of State Documents blocking publication of the rule. In their lawsuit, Sierra Club and CPSR make clear that the Governor lacked the authority to block these safeguards, and that the Division of State Documents is legally required to publish the rule so that it can be enforced.

Subsequently, Gov. Hogan’s MDE announced a plan to move forward with an incomplete dramatically weakened version of the regulations through a non-public “emergency” rulemaking process.

Read the court filing.

See the accompanying exhibits to the filing.