One of the most important categories of solid waste, as shown on my waste map, is “municipal solid waste” (often abbreviated as “MSW”). This is the waste that comes from households, the “trash” you take to the curb (and that your parents may have had picked up from behind their house). It’s the waste most people think of when they hear the term “garbage” or, for that matter, “solid waste.” But when you toss out that old paint can with some paint still in it, or that spent battery, or the expired pharmaceuticals, or burned out light bulbs, or many other things in a typical house, the substance you are discarding might well have been “hazardous waste” if it had come straight from the facility that produced it. Why is the same waste substance considered MSW on one hand and “hazardous waste” on the other? The care (and thus the costs) with which these two waste streams are disposed are quite different. This is the way environmental laws work: by drawing lines that may make sense mostly in a certain political context, the context of “what can get passed by Congress or the General Assembly.”

Read More →

North Carolina had a remarkable period of land conservation between the late 1980s and the early 2000s.  For a nation that gets portrayed typically as single-mindedly obsessed with economic growth and (sadly, often tawdry) development, it’s worth reflecting on the accomplishments of those who have worked hard to keep unique natural places in the State protected.  In particular, I want to single out the state’s land trusts, their funders and the private landowners they work with for their successes in the late twentieth century and beyond.  In the year 2000, in the last administration of Gov. Jim Hunt, the State even committed to protection of an additional one million acres of permanently protected land by the year 2010–the so-called “Million Acres Initiative.”

Read More →

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.

Read More →

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.

Read More →

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.

Read More →

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.

Read More →

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.

Read More →

Some fields of law have fairly clear boundaries. Not so with environmental law. In order to say anything with the least bit of clarity about the field of environmental law as such, you need some sense of what does and doesn’t count as part of the field. I have a simple model of what counts, for my own purposes. In this entry, I will explain my model of the field, and also talk about some of the limitations and unresolved boundary issues with my model. It starts with a recognition that law has long been concerned with two related things, natural resources and waste.

Read More →

Few people understand how complicated the regulation of stormwater has become. It just sounds wrong that something as natural as rain and its runoff would lead to a byzantine system of regulations that range across all levels of government and that differ from place to place. In North Carolina, coastal stormwater rules are just one chapter in the development of this system, and they came about only after two hundred years of environmental legal efforts to manage stormwater. But they were critical to the development of the State’s regulatory system. In part 1 of this chapter, I outlined the early responses of State government to the problem of shellfish closures caused by coastal pollution, leading up to the inescapable realization in the mid-1980s, in North Carolina as elsewhere in the United States, that runoff from developed, impervious surfaces was the primary cause of high bacterial counts in coastal water, and thus of the loss of shellfish that were safe for human consumption. The byzantine bureaucracy behind stormwater regulation is a response to and an indicator of the huge public administration challenge presented by diffuse (nonpoint) sources of pollution.

Read More →

Environmental law has become very complicated over the past forty years, perhaps in no area more so than the control of stormwater. To anyone but an environmental professional, this must sound like nonsense. The word “stormwater” basically means rain, and what could be complicated about an entirely natural process like rain and what happens to it under the influence of gravity? The answers to this question tell us a lot about important tensions in environmental law generally: what level of government has what degree of control? How tailored should the regulations be to local conditions? How much responsibility is left to us as individuals, without governmental requirements or input–“the market” as it’s now often put? Who are the private actors that contribute to stormwater problems? In North Carolina’s attempts to minimize problems from rainwater runoff, viewed over time, we find divergent answers to all these questions. The net result of over two hundred years of attempts to handle rainwater—whether called drainage, diffused surface water, urban and agricultural runoff, erosion and sediment control, or stormwater regulation—is a chaotic bricolage of laws that defy most attempts at a comprehensive overview. In this entry, we will start in the midstream of this messy “system” and look at the responses to the state’s coastal stormwater problems in the 1970s and ‘80s.

Read More →