Mirant sues Montgomery County over pollution tax
Berliner predicts firm will fight tax 'all the way to the Supreme Court'
Montgomery County's largest polluter is suing the county over a new law that imposes a tax on its carbon dioxide emissions.
A much-anticipated lawsuit was filed Monday on behalf of the Mirant coal-fired power plant in Dickerson, claiming the county's law is unconstitutional because it singles out the business.
In the lawsuit, the Atlanta company is seeking to overturn the law and avoid paying the county until the issue is worked out in court. If Mirant's injunction is successful, the money would be placed in escrow and would go to the county if the company loses the lawsuit.
The lawsuit was filed in U.S. District Court in Greenbelt.
"I would predict [Mirant] would take this all the way to the [U.S.] Supreme Court if given the opportunity," said Montgomery County Councilman Roger Berliner (D-Dist. 1) of Potomac.
Berliner, an environmental attorney, proposed the tax, which charges $5 per ton of carbon dioxide emissions for companies that generate more than 1 million tons.
Currently, the law applies only to the Mirant power plant.
In its lawsuit, Mirant states all of its carbon dioxide emissions would be taxed not just the emissions over 1 million tons annually.
"This violates Mirant's constitutional rights, will cause all of the emissions generated at Mirant's power plant ... to be treated differently than other entities' emissions, and conflicts with the Regional Greenhouse Gas Initiative interstate compact that Maryland has entered into with nine other states to reduce greenhouse gas emissions," the lawsuit states.
Councilman George L. Leventhal (D-At large) of Takoma Park said the carbon dioxide tax is a way to recoup some of what the pollution costs the county.
"I feel strongly that polluters cost society far more than the taxes that they already pay," he said.
Berliner has said the tax would raise about $15 million, but Mirant officials say they would lower production and likely pay about $7.5 million. In its first year, the money would go to the county's general fund, but eventually would be used for environmental programs.
The plant produces about 3 million tons of carbon dioxide each year.
Mirant's policy is not to discuss litigation, said Misty Allen, director of external affairs for the firm, but said the company believes the county's law, which took effect May 28, is unconstitutional.
The county has not yet responded to the lawsuit and is still reviewing the complaint, said acting County Attorney Marc Hansen. According to the lawsuit, Mirant is requesting a response within 21 days of the suit's filing.
Berliner said the county anticipated Mirant would sue over the law, but said the suit is likely to be dismissed.
"I think our council and I feel their complaint is baseless, and we will prevail," he said.
The injunction on the funding also is likely to be thrown out, Berliner said. He said Mirant must show "irreparable harm" to be successful, but monetary damages are not irreparable harm under the law.
"If Mirant won, we'd be returning the money, so what's the irreparable harm," Berliner said. "We do not believe they will prevail on either their effort to avoid paying the tax in the short term or in the long term."
If the company refuses the pay the tax, it could face a penalty of 20 percent of the tax on top of the amount of the tax.