Category Archives: Environment

Law Clinics, Farmers and Fairness

By Barry Rascovar / August 3, 2013

THE SAD SAGA of the Hudson Family farm continues.

You remember the Hudsons, who raise Cornish hens for Perdue and also a herd of beef cattle on 300 acres near Berlin on Maryland’s Lower Eastern Shore.

Alan and Kristin Hudson

Alan and Kristin Hudson

Alan and Kristin Hudson got sued in 2007 by the New York-based Waterkeeper Alliance, which hoped to win a landmark case holding Perdue liable for water pollution in drainage ditches caused by chicken manure from a sub-contractor like the Hudsons.

The plaintiffs, represented in part by the University of Maryland’s Environmental Law Clinic, embarrassed themselves. It was such a botched job that it makes an ideal case study (perhaps at the rival University of Baltimore Law School).

Now comes the sequel: The federal judge who threw out the Waterkeeper case with critical comments about the poor quality of attorney work has now denied Perdue and the Hudsons $3 million in legal fees.

But in doing so, U.S. District Senior Judge William Nickerson pounded the law clinic and environmental group once again. He said their lawyers presented a weak case; they intentionally misled the public in statements to the media; settlement efforts were insincere, and their terrible pre-trial preparation led to defeat in court.

If ever there was a teachable moment for law school students, this is it.

Plaintiff’s Missed Opportunities 

Here’s what Judge Nickerson had to say:

“Plaintiff only needed to establish that Hudson’s chickens contributed in some way to the high levels of pollutants coming off the farm and ultimately entering the Pocomoke River.” But the Waterkeeper lawyers missed that chance by “the lack of sufficient and appropriate sampling and testing.” Such an elemental mistake, the judge concluded, made it impossible to tell if the chickens or the cows caused the water pollution.

When the clinic’s legal team switched tactics and tried to blame bacterial pollution on “chicken dust” from exhaust fans in the chicken houses, it again failed to take samples. The judge wrote in a biting commentary, “One is left to ponder why Plaintiff failed to conduct the testing that, at least in hindsight, seems so obviously necessary and critical to the proof of its claim.”

This, according to the judge, was a key “tactical misjudgment.”

The case turned, in his view, on the Waterkeeper and law clinic lawyers’ “failure to properly prepare its case by conducting the necessary sampling.”

Poor Legal Work

In a classic judicial understatement, Judge Nickerson added, “In this Court’s view, Plaintiff’s claim was not pursued or litigated as well as it could have been.”

Put in more common terms, it was a royal screw-up.

Yet because the case wasn’t frivolous or unreasonable, the judge decided punitive payment of legal fees should not be assessed.

Judge Nickerson was especially upset about the Waterkeeper and law clinic attorneys’ handling of pre-trial settlement talks. He looked at all the negotiating documents and concluded litigators were “not seriously working to settle this matter.” Indeed, they demanded more concessions from Perdue than they could have gained in court, according to the judge.

They rejected a Perdue offer to jointly fund an educational institution to study agriculture-related issues. As a result of the Waterkeeper’s hostile action, Perdue also ended a clean waters initiative to help chicken farmers become better environmental stewards.

With considerable sadness the judge wrote, “It is disappointing that no agreement that could have actually benefitted the Chesapeake Bay came from these negotiations. . . . It is most unfortunate that so much time and so many resources were expended on this action that accomplished so little.”

The non-diplomatic version: What a pathetic effort and what a waste of time and money that could have been put toward cleaning up the bay.

On to Annapolis

That’s not the end, though.

The Hudsons’ lawyer says he will go before the state Board of Public Works demanding reimbursement for legal fees.

There’s $300,000 in the state budget because of the law clinic’s questionable involvement in prosecuting (critics use the word “persecuting”) the Hudsons. Gov. Martin O’Malley got so angry he wrote to the law school dean about the propriety of such partisan educational activity.

Enraged rural legislators also tacked another $250,000 onto the budget for the University of Maryland to start an agricultural law clinic or advisory group to “assist farmers in the state with estates and trusts issues, compliance with environmental laws and other matters necessary to preserve family farms.”

Clearly, the law clinic’s ill-fated representation of the Waterkeeper Alliance in going after Eastern Shore chicken farmers has generated widespread State House skepticism.

When the reimbursement issue comes before the board, pointed questions will almost surely be directed at the law clinic and the University of Maryland, Baltimore’s president.

This unfortunate judicial episode could have and should have been avoided. It is proving costly to taxpayers and deeply embarrassing to the law clinic.

It’s time to move on, if only leaders at the law school can put their personal and professional egos aside long enough to find an even-handed way to teach students about both sides of environmental law.

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Stormwater tax unpopular but necessary

By Barry Rascovar / Community Times | July 10, 2013

WHEN YOUR PROPERTY TAX bill arrived by mail last week, you may not have noticed a slight addition: an extra $21, $32 or $39 — depending on your type of residence — for “Stormwater Remediation.”

This is overdue recognition that stormwater pouring from roofs and parking pads pollutes the Chesapeake Bay, promotes flooding and soil erosion and leads to drinking water contamination.

Embarking on fixes takes money.

It’s similar to another charge, $60, on the same bill for the Bay Restoration Fund. This is better known as the “flush tax” promoted by Republican Gov. Bob Ehrlich.

That money is spent on costly sewage treatment plant upgrades to remove nitrogen and other pollutants before the cleansed water is dumped into streams, rivers and the Chesapeake.

They are necessary expenses if we care about our environment.

None of us like to pay taxes. That’s been true since the American Revolution — remember the original Tea Party in Boston and other colonial cities?

But delivering government services and preserving our valuable natural resources can’t be done for free.

In Baltimore County, the fee to deal with stormwater runoff pays for such services as street sweeping, storm drain cleaning, maintenance and improvements, shoreline stabilization, tree planting and reforestation, among other things.

The county’s charge is $21 for a townhouse, $32 for a condo and $39 for a single-family home. This is far cheaper than Baltimore City, between $40 and $120 per residence, and generally less than Howard County, $15 to $90.

Anne Arundel County is phasing in its stormwater fee, $34 to $85, over three years and Harford County has a 10-year phase-in of its $125 fee while a task force studies other options.

The fee is mandated by state law affecting 10 jurisdictions that contribute the most to stormwater pollution of the bay.

A few counties refused to take the state mandate — required by the federal Environmental Protection Agency — seriously. They could face hefty fines or a whopping cleanup tab down the road.

Carroll County’s staunchly conservative commissioners aren’t imposing any fee and will pay for cleanup projects out of the county’s annual budget. Frederick County’s even more conservative commissioners imposed a $1 per residence fee and dared the EPA and Maryland to object.

Meanwhile, a Baltimore County Republican known for his grandstanding is leading a drive to repeal the so-called “rain tax.” Del. Pat McDonough has as much chance of succeeding as stopping the rain from falling on roofs and other impervious surfaces.

When you think about it, this fee and Ehrlich’s “flush tax” are cost-effective ways to show our support for clean water. For less than $100 a year every resident in Baltimore County contributes to a greener environment that makes it safer to swim in our rivers and bay, drink water from our taps and preserve this state’s greatest treasure, the Chesapeake.

 Barry Rascovar is a political columnist whose writings can be viewed as www.politicalmaryland.com. His email address is brascovar@hotmail.com.

Maryland’s New Taxes: Why Now?

By Barry Rascovar / July 2, 2013

TAXES ON GASOLINE in Maryland went up 3.5 cents on Monday; crossing toll bridges and tunnels got a lot more expensive, especially for truckers. Fees to combat stormwater pollution kicked in as well in the greater Baltimore-Washington area.

Higher gas taxesIt’s a big pill to swallow, even in a state whose leaders have felt no compunction about raising over 40 taxes, especially on businesses and the well-too-do, during the O’Malley-Brown reign in Annapolis.

Yes, the fees and taxes that commenced July 1 are necessary over the long run. We may not like it, but progress comes with a price.

Land of Toxic Living?

Would we rather watch bridges collapse, beltway congestion mushroom and pollution of streams, rivers and the Chesapeake Bay turn Maryland into the “Land of Toxic Living”?

It’s the timing and the size of these tax increases that are so terrible.

The burden imposed on businesses and non-profits is harmful and counter-productive. Critics have a right to mock the state’s chief executive by cynically shouting: “Pile high the taxes, Martin!”

Wait Till Later

Even worse, the first stage of the gasoline tax in Maryland pales compared with future increases dictated under the new law that could total 65 cents. The cries of anguish and anger will dog the next administration in Annapolis — a gift from the departing governor.

It didn’t have to play out this way.

A thoughtful, practical and courageous approach by political leaders in the Maryland State House would have led to action much sooner. That would have meant smaller levies phased in over time and two decades of transportation and environmental upgrades.

A Better  Way

It’s no surprise that more must be spent today to stem pollution caused by stormwater runoff. If Maryland had acted sooner, the fees would have been more modest and the remediation would have been cheaper.

Instead, O’Malley & Co. waited . . . and waited . . . and waited until the Environmental Protection Agency strong-armed Maryland and other nearby states to commit to big pollution cleanups.

It also was no surprise Maryland needed more money to repair dilapidated bridges and highways. Yet no governor and no legislature in the last 20 years had the courage to do the right thing..

Gone With The Wind

Instead, they took the Scarlett O’Hara approach: They put off difficult decisions until Maryland faced a transportation crisis and construction costs had soared.

As a result, Marylanders face a raft of gas tax increases that eventually will make this state one of the costliest in the nation at the pump. The new tolls for some truckers are so severe it may put their businesses in jeopardy.

Governors and legislators also dramatically raised the cost for fixing transportation and environmental shortcomings by waiting.

Parris Didn’t Get It

Had Gov. Parris Glendening overcome his political trepidation and acted in the best, long-term interests of Maryland he would have insisted in the 1990s on a gas tax increase tied to inflation. He also would have imposed modest fees to stem sewage plant and stormwater pollution of the Chesapeake.

The same can be said of Bob Ehrlich, who jacked up transportation licensing fees instead of biting the bullet with a far larger tax increase at the pump. He deserves credit, though, for imposing an unpopular “flush tax” to modernize sewage treatment plants. It didn’t win him points with conservatives — and hurt his reelection chances — but it was the right thing to do.

O’Malley failed to seize his moment (“carpe diem”) in 2007 when he had a golden chance to ram through a gas tax increase along with slots legalization. A small environmental cleanup fee could have been tacked on at that time, too.

So Many Missed Opportunities

We could have averted the current round of tax hikes but no one in the State House took the high road. They worried about re-electability instead of Maryland’s long-term viability.

We would have had better roads and bridges, too, and a cleaner Chesapeake Bay had our political leaders acted wisely in the past. Two decades of progress in transportation and the environment were lost.

Our leaders haven’t been very courageous. We’re paying the price for that today.

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Smart Growth, Dumb State (Guess Which One)

owings mills metro centreBy Barry Rascovar / June 19, 2013

THE STATE OF Maryland boasts mightily about its Transit Oriented Development (TOD) programs. Just don’t bother looking for much in the way of tangible results.

“Maryland has great TOD potential” brags the state on its transportation website. Dig a little deeper, though, and it turns into wishful thinking, not boots-on-the-ground achievements.

TODs are the ultimate in Smart Growth.

They turn transit stations into job-centered areas of dense, walkable neighborhoods in both cities and suburbs. Other towns, like Seattle and Denver, offer examples of how to do it. (For more on the potential of “transit villages” in Maryland, see my 2006 Goldseker Foundation report – “Five Years, Fifty Thousand Jobs,” page 13.)

The Baltimore-Washington region, unfortunately, offers examples of how to draw up great plans and watch them fall apart or gather dust.

That thought came to mind at a ribbon-cutting Monday for the state’s one true TOD – Owings Mills Metro Centre.

Brand New Neighborhood

What you see along Grand Central Avenue (see photo above) is a long row of apartment buildings on one side of a broad boulevard and a six-story, library-community college building on the other side flanked by a massive garage — soon to be doubled in size — and an office high-rise under construction.

All of this sits beside the Metro station that connects to downtown Baltimore and Johns Hopkins Hospital. On the east side of the tracks is a huge parking lot. This eventually will become part of the mixed-use TOD.

A brand-new neighborhood is being created where none existed before.

The rail station, library and community college are the draws. A short walk up the hill is a multiplex cinema, townhouses and an aging mall that, if reimagined properly, could extend the scope of this TOD. Just down the road is a large retail development in progress, centered around a Wegmans supermarket.

This TOD will boast a residential population of 2,500 with many more office workers populating the area during the work week. Shops and restaurants will occupy ground floor space. Over 11,000 community college students a year are expected to take day and night courses at the new Community College of Baltimore County campus, sharing facilities with the already popular library branch (the largest in the county at 54,000 square feet).

Persistence Pays Off

What made this a reality was the unwavering commitment of county officials, from Dutch Ruppersberger to Jim Smith to Kevin Kamenetz. They not only funded key infrastructure, they stuck to the vision of making the Owings Mills TOD primarily a residential community.

Instead of transplanting a state agency to a transit station – the state’s feeble stab at the New Carrollton TOD in Prince George’s County – Baltimore County insisted on a library and a community college. These are the sort of amenities people want to live near.

(Had officials taken the same approach at the stalled and deeply flawed State Center TOD in Baltimore – by turning the property into a large mid-town residential neighborhood with appealing attractions – there might have been only token opposition.)

The path to the Owings Mills ribbon cutting wasn’t easy. It proved long (well over a decade) and arduous, especially during the dark days of the Great Recession.

But the county persisted. Officials continued their dialogue with developer Howard Brown until the economics worked.

You can see the future emerging at the Owings Mills Metro. It’s what every TOD should look like.

It’s just a shame Maryland has been so slow catching on to what works, and doesn’t work, in making this valuable Smart Growth tool a success.

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Maryland’s Nullification Craze

Sheriff CorleyBy Barry Rascovar / June 6, 2013

LET’S SEE IF I’ve got this straight:

—Garrett County’s elected sheriff (see photo) says he won’t enforce Maryland’s new gun registration law because he believes it is unconstitutional. In three other rural counties, elected leaders pass resolutions proclaiming defiance and denouncing the law.

—Baltimore’s City Council unanimously approves a bill requiring city building contractors to hire locally, even though the city solicitor says this is such a clear violation of the U.S. Constitution it is “legally indefensible.”

—Frederick County’s commissioners mock the state’s stormwater remediation fee — the so-called “rain tax” — by setting a penny-a-year charge on residents, thus netting $487 for watershed improvements. It’s their way of “complying” with the law.

In each case, rebellion is afoot, a form of modern-day nullification.

No court has ever upheld the legal theory of nullification, which essentially says if you don’t like a law you simply declare it null and void — the ultimate in libertarian individualism.

Under the guise of nullification, some Maryland politicians recently took it upon themselves to interpret the law the way they want it.

Sheriff Rob Corley announced he would decide for himself when he’ll enforce the state’s new gun law. The 14-year veteran of isolated Garrett County’s police department declared the law unconstitutional — apparently based on the fine legal training he received as an undergraduate at West Virginia’s Fairmont State College.

This raises the obvious question: What laws will Corley enforce? Does he get to pick and choose? Who made him arbiter?

The good news is Corley will play no role in carrying out the new gun registration law. The Maryland State Police can handle this chore without the sheriff’s offer of non-assistance, thank you.

The bad news is that citizens of Garrett County must be wondering what kind of sheriff they elected. He’s only going to enforce some of the laws? Since he’s the sheriff he must think he can make things up as he goes along. So much for a state legislature, governor and the courts.

Meanwhile in Baltimore City the nullification farce took a different tack. Instead of obeying the U.S. Constitution, City Council President Jack Young and his equally hapless colleagues passed a local hiring ordinance that snubs the Supreme Court. So what if this law is unconstitutional? We want a local hiring mandate!

Not one member had the integrity to disagree with this farce. Even the mayor ducked: She said the bill would become law without her signature. What a portrait of courage!

To rub in the insult, Council President Young submitted a bill seeking an “independent” legal adviser for the council. He didn’t like the city Law Department’s ruling so he wants to hire his own lawyer, whose job will depend on pleasing the Council president. Nice way to squander taxpayer dollars.

Finally in Frederick County, the tea party commissioners came as close as they dared to declare the “rain tax” null and void. One dissenting commissioner compared passage of a penny-a-year fee to a child throwing “a tantrum on the floor in the middle of a department store.”

That’s par for the course for the ring-leader, Commissioner Blaine Young, who wants to be governor. It was widely viewed as a political stunt, one of many by Young. Yet if this defiance persists Frederick is still obligated to finance $112 million worth of watershed cleanup. $487 a year won’t cut it. One day the cleanup bill will come due — only it will be much more expensive by then.

So nullification lives on in Maryland, from both the far left and the far right, in the urban core and the Appalachian mountains. The land of the free and the home of the brave!

Bad Science And The ‘Rain Tax’

By Barry Rascovar / May 24, 2014

Chesapeake Bay   A STORM IS BREWING in the Chesapeake region over ways to go about, and pay for, the bay’s expensive pollution cleanup.

Conservative politicians, especially Republicans, are having a field day deriding the stormwater runoff fee mandated last year by the Maryland General Assembly. Local Baltimore-Washington governments must set fee schedules by July 1. Whoever first attached the derisive moniker “rain tax” to the stormwater levy deserves a gold star from Propaganda Addicts Anonymous.

The phrase stuck like crazy glue. It has come to symbolize — in a gross distortion — the overreach of an oppressive, heavily intrusive government in the Annapolis State House. “Now they’re even taxing the rain!” is the way those in the no-tax crowd describe the situation.

What a great slogan for spinning the story. No tax is a good tax in the eyes of these neo-Republicans, but a tax on rain? How ludicrous.

Never mind that the levy makes eminent sense. Polluted water running off non-absorbing services — like driveways, roofs, roads, and parking lots — contribute mightily to today’s pollution of the Chesapeake Bay, one of the world’s most valuable estuaries.

Truth be told, a tax on impervious surfaces should have been put in place decades ago. It’s so obvious that this dirty runoff, chock full of nitrogen, phosphorus and other harmful chemicals, needs to be treated before reaching the bay.

That’s going to cost a pretty penny, which is compounded by Maryland’s late start. The Environmental Protection Agency’s cleanup plan comes in at nearly $15 billion with the states footing a large share of the bill.

As much as opponents mock the “rain tax,” they haven’t proposed an alternative. Ignore the problem? Let the Chesapeake slowly turn into a massive “dead zone”?  Pollution remedies are not cheap. Some taxes are necessary and inevitable.

Unfortunately, too many local leaders are imposing large and sometimes onerous fees on businesses with industrial and commercial property containing lots of impervious surface. That could drive companies to other subdivisions with cheaper fees.

Things could get far worse in the ten Maryland counties implementing stormwater runoff fees. Indeed, these levies could mount in future years due to flawed scientific data affecting another aspect of the Chesapeake cleanup.

It turns out the EPA may have been dead wrong in blaming farmers, especially poultry farmers, for much of the bay’s pollution problems. A study conducted by two University of Delaware professors and a University of Maryland poultry specialist found the EPA’s computer models for determining Chesapeake pollutants decades out of date.

Bad science leads to bad results. In this case, the study showed actual phosphorous pollution from poultry manure in one Delaware county (Sussex) was less than half the EPA figure. Nitrogen pollution was 38 percent of the EPA number and total chicken manure produced turned out to be just one-fifth of the EPA figure.

These are huge differences. The EPA could be wildly overestimating the extent to which poultry farmers pollute bay waters. The professors, led by James Glancey, studied thousands of manure tests and recent shipment logs rather than relying on old EPA data from the 1980s.

Even though the potentially landmark study has not yet been peer reviewed or published, an EPA work group and state environmental officials may move quickly to modernize the bay’s computer models. Glancey’s results are hard to refute because they flow from current data.

This could mean reduced emphasis on new regulations to rein in pollutants from Delmarva farms and far greater emphasis on the obvious major contributor, suburban and urban water pollution sources.

If that, indeed, is the case, the derided “rain tax” may need to be increased consistently in future years.

After a heavy storm, visit Baltimore City’s Inner Harbor and look at what flows into the Middle Branch of the Patapsco River from the Jones Falls. It’s not pretty.

Cleaning up this mess, and others like it in the Chesapeake catchment area, will take a long time and a lot more dollars from the “rain tax.”