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Attorney General Frosh is leading a coalition of 12 state attorneys general opposing the federal government's plans to dramatically expand the scope of offshore drilling for oil and gas, including in waters off the coast of Maryland. In comments submitted to the Department of the Interior, Attorney General Frosh emphasized that our coastal waters are environmentally sensitive, and that each phase of exploration carries significant environmental risks—from the testing and drilling needed to locate deposits, to the damage done during extraction and transport of fuels, to the inevitable spills that occur. A catastrophic spill akin to the 2010 Deepwater Horizon disaster, moreover, could devastate our coastal resources—including the State's fishing and tourism economies—for many years to come. In early 2019, Attorney General Frosh lead a coalition of nine states attorneys general intervening in a lawsuit to stop seismic testing surveys in the Atlantic Ocean. These surveys, conducted as precursors to drilling for oil and gas, threaten the health and life of hundreds of thousands of marine mammals due to repeated high decibel sound blasts. Please see press releases below:
On July 25, 2018, the U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules to amend the Endangered Species Act's implementing regulations. Attorney General Frosh joined nine other states in commenting on those proposals, which were finalized in August 2019. In September 2019, Attorney General Frosh, along with 17 other state attorneys general and the City of New York, filed a lawsuit opposing the new regulations.
Among other things, the lawsuit challenges regulatory changes that make it more difficult to designate critical habitat, allow for the introduction of economic data into the administrative record informing listing determinations, limit the consideration of climate science in determining a species likely status in the foreseeable future, eliminate recovery as a basis for delisting, allow for the piecemeal destruction of critical habitat, narrow the definition of “effects of an action" during consultation, and revoke the default protection from take for threatened species. Please see the press release below.
In January 2019, the Maryland Board of Public Works unanimously voted to deny an easement required for the construction of a natural gas pipeline under the Western Maryland Rail Trail. Columbia Gas Transmission, owned by energy company TransCanada Corp., had requested permission to construct the pipeline.
The BPW denial prompted Columbia Gas Transmission to file a lawsuit against the State in May 2019, seeking immediate access to the property on the ground that it had obtained from the Federal Energy Regulatory Commission a certificate of public convenience and necessity giving it the power of eminent domain over the property.
Attorney General Frosh moved to dismiss the suit on June 17, arguing that the 11th Amendment to the U.S. Constitution prevents a federal court from ordering the State to grant the easement. In an August 2019 order, the United States District Court for the District of Maryland agreed with the State and blocked construction of the pipeline. Please see the press releases below.
Chlorpyrifos is a toxic pesticide that has adverse neurodevelopmental effects, particularly in infants and children. It is widely used, including in the production of fruits and vegetables consumed by millions of Americans. In 2017 EPA issued an order to allow continued use of chlorpyrifos on food crops, despite the fact that EPA's own scientists were unable to identify a safe level for the pesticide in food. Attorney General Frosh, along with several other states, obtained a favorable ruling from U.S. Court of Appeals for the Ninth Circuit. Nevertheless, EPA issued a final rule in July 2019 that continues to allow the use of chlorpyrifos.
Attorney General Frosh and other attorneys general filed a lawsuit in response, arguing that EPA's final rule is unlawful. Among other things, the lawsuit maintains that EPA has violated the law by allowing continued use of chlorpyrifos without concluding that any level of chlorpyrifos residue on food is safe and will not harm infants and children. Please see the press releases below.
Vehicle emissions are one of the largest sources of greenhouse gases and other air pollutants, and Attorney General Frosh is working to ensure that cars and trucks continue becoming cleaner. Attorney General Frosh joined other state attorneys general in a successful effort to block the Trump administration from suspending higher penalties on automobile manufacturers that fail to comply with federal fuel efficiency standards. He also is part of a broad multistate coalition challenging EPA's decision to roll back greenhouse gas emission standards for cars and light trucks. More recently, Attorney General Frosh joined other states to take on the federal government's attempts to revoke California's Advanced Clean Car Standards, which Maryland has adopted. This move restricts the states' abilities to curb emissions and address air quality issues and the climate crisis. Attorney General Frosh joined two lawsuits in late 2019 opposing both the National Highway Traffic Safety Administration's and the Environmental Protection Agency's efforts restrict California's vehicle emissions standards. Please see press releases below:
Attorney General Frosh has joined numerous other states, the District of Columbia, and some of the nation's largest cities to oppose attempts by the Trump Administration to repeal the Clean Power Plan. Adopted by EPA in 2015, the Clean Power Plan is the first nationwide effort to regulate greenhouse gas emissions from power plants. It is a significant step towards combating the causes of climate change (which poses significant threats to Maryland)—not to mention reducing pollutants that harm our air quality and impair public health. Attorney General Frosh is participating in multistate efforts to persuade EPA to implement the Clean Power Plan instead of repealing it. In addition, because EPA failed to schedule hearings in Maryland on its proposed repeal of the Clean Power Plan, Attorney General Frosh worked with State legislative leaders to convene a public hearing for Marylanders. The hearing took place in Annapolis on January 11, 2018, and everyone who testified voiced opposition to EPA's proposed repeal of the Clean Power Plan. In 2019, Attorney General Frosh led a coalition of attorneys general in filing an amicus brief supporting efforts to hold fossil fuel companies accountable for contributing to climate change and its resulting harms. Please see press releases below:
Pollution transport refers to pollution from upwind emission sources that impact air quality at another location downwind. Pollutants can travel great distances on the prevailing winds, often crossing state boundaries and causing air quality problems in downwind states. The EPA has acknowledged that Maryland's problem attaining and maintaining compliance with the National Ambient Air Quality Standard for ozone is due in large part to transported pollution from other states. The Clean Air Act's “good neighbor provision" requires the EPA and states to prohibit interstate transport of air pollution that negatively affects downwind states' ability to attain and maintain federal air quality standards. Pursuant to section 126 of the Clean Air Act, a state may petition the EPA for a finding that sources in another state are emitting air pollutants in violation of the good neighbor provision. On November 16, 2017, Maryland filed a section 126 petition with the EPA, but EPA failed to act on that petition within 60 days, as required by law. The Office of the Attorney General is representing the State in a lawsuit against the EPA asking that the United States District Court for the District of Maryland order the EPA to act on the 126 petition. The EPA denied the 126 petition on September 14, 2018, prompting Attorney General Frosh to sue the agency in October 2018 requesting a judicial review of that denial.
In addition to the good neighbor provision, the Clean Air Act establishes an Ozone Transport Region (OTR), comprising various Northeast and Mid-Atlantic states, including Maryland. The states within the OTR must implement certain mandatory requirements to reduce ozone pollution. The EPA may expand the OTR, either on its own initiative or in response to a petition from any state filed under section 176A of the Clean Air Act. On December 9, 2013, the states of Maryland, Connecticut, Delaware, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont—all OTR states—filed a section 176A petition asking the EPA to expand the OTR to include certain states which are significantly contributing to ozone pollution within the OTR. The EPA failed to timely act on that petition, and following a lawsuit to compel a decision, the EPA denied the petition. The Attorney General's Office is representing Maryland in a lawsuit against the EPA alleging that the petition denial was arbitrary and capricious.
Please see press releases below:
On April 25, 2018, the Office of the Attorney General and the Maryland Department of the Environment entered into a $33.5 million settlement agreement with Volkswagen AG and its affiliates, Audi AG and Porsche AG. The agreement settles an enforcement action brought by MDE for the auto manufacturers' use of “defeat devices" in certain models of their vehicles in violation of Maryland's air quality control laws. Specifically, the devices were installed in model year 2009-2015 diesel engines to ensure that the vehicle's emissions controls performed properly during emissions testing; in real-world driving conditions, however, the device switched off or scaled back the vehicle's emissions controls—resulting in harmful nitrogen oxide emissions. Under the terms of the agreement, Volkswagen, Audi, and Porsche agreed to:
The Office of the Attorney General is representing the State in pursuing claims against petroleum manufacturers who used a chemical additive—methyl tertiary butyl ether (MTBE)—that has contaminated groundwater throughout Maryland. The Attorney General has assigned a group of Assistant Attorneys General to coordinate this effort, along with a team of Special Counsel who have experience representing New Jersey, Pennsylvania, and Puerto Rico in similar litigation. In December 2017, the State filed suit against over 50 manufacturers and suppliers of MTBE, which the Environmental Protection Agency considers a possible carcinogen. The litigation is expected to last several years. Please see press release below:
Attorney General Frosh has joined a coalition of Attorneys Generals to challenge the legality of the Trump administration's attempts to weaken federal clean water protections. EPA and the Army Corps of Engineers have initiated two rulemakings that would first delay, and ultimately repeal, the “Clean Water Rule"— a federal regulation that defines the scope of federal jurisdiction under the Clean Water Act and that is designed to ensure the nation's lakes, rivers, streams, and wetlands receive proper federal protection. In September 2017, a coalition of attorneys generals submitted comments to EPA and the Army Corps opposing a proposal to outright repeal the Clean Water Rule. Then, in December 2017, a coalition of attorneys general submitted comments on a second proposal from EPA and the Army Corps to suspend the Clean Water Rule for a period of two years. That proposal became final in February 2018, and Attorney General Frosh joined with 10 other attorneys general to file suit challenging the legality of the federal action to suspend the rule. The attorneys general allege that the Trump Administration lacks the authority to suspend the Clean Water Rule after its effective date has passed, failed to provide a meaningful opportunity for public comment on the substance of the suspension proposal, and disregarded the massive factual and scientific record that supported the Clean Water Rule at the time it was developed.
The Trump administration has also solicited comment on whether EPA should clarify or revise its position on whether pollutants that reach surface waters by way of groundwater flow with a direct hydrologic connection to surface water should be subject to federal regulation under the Clean Water Act. On May 21, 2018, Attorney General Frosh led a coalition of five states in submitting comments to EPA. The attorneys general urged EPA not to abandon its long-held position that pollution discharges that reach surface waters by way of a sufficiently direct groundwater connection are subject to federal regulation. The attorneys general pointed out the need for a robust federal regulatory role and the importance of strong protections against degradation in the quality of the nation's waters.
In July 2018, Attorney General Frosh led a coalition of state attorneys general in filing a brief with the Supreme Court to argue that Congress did not create an exception to the federal Clean Water Act for regulating discharges of pollutants that travel through groundwater before reaching navigable waters.
Please see the press releases below:
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