I place waste at the center of environmental law based on my personal, broad definition of waste. My definition includes anything humans produce that isn’t needed for the purpose of the production and that isn’t used beneficially right away–things that we could do without, such as the heat from an incandescent bulb, in most circumstances. Yes, there are times we might want a light bulb that also produces a lot of heat, but in most settings we could duplicate the desired light quality and quantity with a bulb that saves energy, by not producing excess heat. Similarly, the light from a bulb that is turned on, but not serving any useful purpose, is also waste.

For a working environmental lawyer, though, this is a bit esoteric. What that lawyer, or anyone trying to understand the positive law of the environment, needs is a way to keep all the parts of the legal definition of “solid waste” in place. In other words, our law in NC (and elsewhere in the US) has created many sub-categories of waste, and the regulation of these sub-categories varies widely. Which means the costs vary widely. So I use a waste map that I’ve created to help keep track of regulatory categories of waste.

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Can cities or counties in North Carolina require customers, particularly commercial customers, to use the local government’s recycling program?  It’s a good question, especially in light of the failure of almost all of the State’s counties to meet the ten year waste reduction goals created back in 1991–most counties  did not reduce their waste streams at all. I think the answer is “no,” an NC city or county cannot mandate recycling, meaning the use of the local government’s recycling service.  However, local governments can require the separation of recyclable materials from the municipal solid waste stream, the waste headed to the landfill. It’s then up to the customer to decide what to do with the reclaimed material.  A local government that goes further and provides a convenient way to collect the recovered material can go a long way to reducing the pressure for future landfill disposal.

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What kinds of laws can a unit of local government in North Carolina–a city, a county, or a special purpose unit such as a soil and water conservation district–pass to adjust the balance between environmental protection and economic production? The answer to this general question starts with a search for authority given to the unit of government by the state legislature. There is also the open question of whether the N.C. Constitution itself grants some such authority.

Assuming there is a source of local power to act, the next question is whether State or federal government has already acted in a way that prevents the local unit from changing the law. This is the question of preemption, in legalese. My colleagues who focus on general local government law have ably discussed the way preemption questions are analyzed legally.  But environmental problems have contributed more than their share of major cases on preemption. And environmental problems seem destined to continue raising hard questions about the relative power of local versus state and federal governments, as political power ebbs and flows in Raleigh.

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Many people in the United States today like to speak of a thing called “free enterprise,” which in their minds is closely linked to “property rights,” with both of these things being represented by a time in American history before the rise of “big government“–back in colonial days, and for a period after Independence up to the industrial revolution.  It would surprise and perhaps disturb these people to find that the earliest North Carolina legislatures, filled with “founding fathers,” were quite willing to take away an individual’s property rights in the interest of environmental improvement.  As long as environmental protection was perceived to advance economic development, early American leaders readily restricted individual freedom by imposing state-sanctioned changes on property.  But before the rise of the state administrative agencies that now form much of the executive branch of government, the legislature turned to local government and the courts to impose these requirements on property owners.

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Environmental law and constitutional law have shaped each other in profound ways.

This is not surprising, given environmental law’s intimate connection with the regulation of private property rights. It not surprising for another reason: a major part of environmental law, especially public environmental law, can be thought of as a species of administrative law. As such, environmental law problems often directly touch and concern fundamental issues such as the structure of government, the respective powers and duties of the major branches of government, and the powers and limits on governmental agencies.

In North Carolina, there is an even more direct connection: the state Constitution itself provides support for environmental protection, as a result of an amendment that passed overwhelmingly in 1972.  But the exact scope and meaning of the N.C. Constitution’s statement of environmental rights remains unclear, over forty years after it was passed as a constitutional amendment.

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