Although climate-related legislation occupied a large part of the legislative agenda in 2022, the General Assembly took up a number of other initiatives of interest to commercial real estate. Some draft bills proposed to drastically broaden the ability of individuals and organizations to litigate government permits and approvals.
Senate Bill 783 and House Bill 596 proposed amending the Maryland Constitution to establish that, “every person has a fundamental and inalienable right to a healthful and sustainable environment.” The bills made the state the trustee of the air, land, water, wildlife and ecosystems. The bills would have created an individual cause of action to enforce these rights in the courts based, not on scientific standards adopted through laws and regulations, but on the plaintiff’s personal tastes, their personal definition of the new, constitutionally guaranteed air and water rights, and their own expectation of what may be “a sustainable environment.”
The bills were very different than current state and federal rights to citizen suits and would have marked the end of carefully balanced approaches to who has the right to appeal land use and environmental permits. The bills’ provisions raised serious concerns that routine functions of state and local governments would become chaotic and ungovernable. Activities performed under state and local permits would never really be vested and reliably carried out because virtually any opponent could use the legislation’s broad language to initiate tactical litigation to oppose legitimate work under government permits.
The Maryland Attorney General, Baltimore County, Baltimore City, and the City of Salisbury submitted testimony in favor. The bills were also supported by more than 70 climate-related organizations who saw the new rights and standing to appeal as a method to accelerate the adoption of climate mitigation practices. The bills died in their respective House and Senate committees.