In every even numbered year, North Carolina has elections for county officials. In every other one of these even numbered years, like 2016, there is a simultaneous election at the top of the ballot for President of the United States. Hundreds of millions of dollars are spent and mass media is fixated over more than a year, assuring global attention to this important election. But at the bottom of those ballots in every even numbered year, another set of elections takes place with implications for the State’s environment–yet the media attention, if any, is almost always limited to asking “what do these people do, these Soil and Water Conservation District Supervisors?”  Our collective ignorance of the work of soil and water conservation districts is sadly paralleled by our ignorance of the importance of soil itself. Water makes its way into our headlines more regularly these days, though it is still largely taken for granted in the well-watered eastern United States. Soil–that thin, living layer that sustains life itself on what, without it, would be a lifeless rock in space–has got to be the most undervalued environmental attribute in our world.

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In late March 2016, North Carolina took front stage in national political news. The legislature convened  for a one-day special session to pass a bill preventing local governments from enacting anti-discrimination ordinances. Some of the news coverage, national and state, addressed the general issue of the legislature’s stripping power away from local governments in other areas, notably local government structure, taxing authority and infrastructure ownership.

Over the past five years, the North Carolina legislature has also stripped the state’s local governments of many of their powers to regulate environmental threats. This trend has not been widely reported. In this entry I will catalog some of the recent changes in local government’s environmental regulatory powers–all of them reductions in such powers.

These changes also should be viewed in a longer historical context, however. There has been dynamic ebb and flow between local governments, the State, and the federal government in power to regulate the environment ever since the passage in the 1970s and 1980s of the nation’s major federal environmental statutes. This entry will also go back to the start of the State of North Carolina and describe what I see as five major periods with different arrangements of local versus State environmental regulatory power:

1. A Preindustrial era of purely local control (1700s to 1900)
2. Early industrial era of State floors with local flexibility (1900 to 1970)
3. Late industrial era of federal mandates with potential State flexibility, limited in NC by the legislature (1970 to 1990)
4. Postindustrial era of federal and State “devolution” of power, yielding many localized or “place-based regulations” (1990s to 2010)
5. Great Recession and post-recession era clampdown on agency and local environmental discretion (2011 to present)

An important feature of all this ebb and flow is that new eras never completely wiped out the programs and laws created in early eras. The power swished around like water beneath coastal piers, but the old programs often remained, like barnacles, some alive and others just crusty hulks of their former living selves.  I will start with the recent era and work backwards in time. Some of the most interesting legal problems are presented by the persistence of those earliest barnacles.

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In earlier posts, I have discussed two canards about rulemaking in North Carolina

• Authority for rulemaking is rarely in question and easily found; more critical is whether there are “adequate guiding standards”
• Rules have the same legal power as statutes, among other things binding the agency as well as persons outside the agency

I will finish this series on some core beliefs about rulemaking with an environmentally-centered, critical look at this final canard:

• Rulemaking processes should be consistent from authorization to judicial review

Frankly, no one who practices or follows environmental law in this State could take seriously the claim that the legislature cares much about consistency in administrative law processes, such as rulemaking. What do they care about, and how should judges review their grants of authority, if not by seeking consistency, a long and hallowed hallmark of legal fairness?

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One of my hopes for this blog was that it might evolve into a discussion, even debate, over the history of environmental law and policy in North Carolina. Some of the people who were principally involved in shaping that history over the last forty to fifty years are still around, but have rarely shared their views publicly on what worked and what did not work.

One such person is John Morris. John headed the N.C. Division of Water Resources for many years. He worked his way up to that position in other jobs that gave him a view of State environmental policy, and he has remained an engaged observer in the few years since his retirement in the mid 2000s. So I was delighted that John emailed to share what he called a “comment” on my entry about the rise and fall of DEHNR from a “big tent” agency to its much smaller and more tightly focused role today.

John’s comments are important and in-depth enough to deserve their own entry, and so what follows after the break is his response in its entirety.

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What is the power of an agency rule? The longstanding canard is that a rule has the force of law, just like a statute. So, for example, rules can alter the common law:

Where an agency has the authority to act, its rules and regulations have the binding effect of statutes and may accordingly alter the common law. Taylor v. Superior Motor Co., 227 N.C. 365, 367, 42 S.E.2d 460, 461 (1947) (noting that “proper regulations authorized under the Act have the binding effect of law,” because such regulations “are the tools used to effectuate the policy and purposes of the Act.”)

In re Declaratory Ruling by NC Comm’r of Insurance Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 30 (1999).

Similarly, the view has long and generally been that agencies are bound by their own rules, since the rules are, essentially, just like statutes. See, e.g., Snow v. Board of Architecture, 273 N.C. 559 (1968); 2 Am. Jur.2d Administrative Law § 350 (1962) (“Procedural rules are binding upon the agency which enacts them as well as upon the public of the agency, and the agency does not, as a general rule, have the discretion to waive, suspend, or disregard in a particular case a validly adopted rule so long as such rule remains in force.”).

But here’s another conundrum about rules: they don’t always get treated with the same legal respect as statutes, despite what some court opinions say, and what the Administrative Procedures Act seems to imply about them.

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It’s impossible to grasp modern American environmental law without some understanding of administrative law–the law that limits and empowers governmental agencies (like U.S. EPA and N.C.’s Department of Environmental Quality). One of the primary ways that executive branch agencies carry out their work is through “rulemaking.” Rulemaking is the process for establishing rules (“regulations”) that have the force of law. Rules and regulations are at the center of many, if not most, of the current controversies over environmental law. So it’s important to understand how and why rules get made–what the “rules for rulemaking” are. The practicing environmental lawyer needs this understanding to advise clients every day, and the person interested in reform of environmental law and policy needs at least a general understanding of the rulemaking process in order to be effective.

So in this and a few followup posts, I will discuss some problems in the way that rules are authorized in North Carolina (and elsewhere, but my focus is on the Tarheel state).  I have structured this discussion as “canards, conundrums and conclusions” and I will present three canards, more than three conundrums and a few conclusions.

Canard: 1. a groundless rumor or belief. 2. (French) ‘duck,’ from Old French caner ‘to quack

My three canards–things that are widely believed to be true about the legislative authority for and power of rules–are these:

• Authority for rulemaking is rarely in question and easily found; more critical is whether there are “adequate guiding standards” for the particular rule that’s created
• Rules have the same legal power as statutes; for example, they bind the agency as well as persons outside the agency; they can change the common law; and they can’t be waived or disregarded by the agency that made them
• Rulemaking processes should be consistent from authorization to judicial review

These three propositions are not actually “groundless,” as the definition above implies, but they are taken almost as gospel by most administrative lawyers. In fact, when you scratch their surface just a little, the conundrums pop right up.

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2015 was another big year in changes, almost entirely deregulatory changes, in North Carolina’s environmental laws. The General Assembly’s first ratified bill of the session, S.L. 2015-1 (“Amend Environmental Laws”), was an assortment of changes to such diverse programs as coal ash cleanup, solid waste generally, and air toxics. Among the General Assembly’s last ratified bills was S.L. 2015-264 (misleadingly entitled a “technical corrections bill as recommended by the General Statutes Commission”) with a section appearing after midnight in the waning hours of the session, for the first time, with no prior committee review or public debate, that attempts to prohibit any local government regulation of oil and gas exploration, development and production. Between these two bookends, against the backdrop of Volkswagen’s admission that it faked its emission results on millions of supposedly “Clean Diesel” cars worldwide, were dozens of provisions affecting nearly all facets of N.C. environmental law. I have summarized these provisions in this framework:

1. Changes that reduce public environmental information
2. Changes that allow more pollution, or more development in environmentally sensitive areas.
   • Air
   • Water
   • Land
3. Environmentally protective changes
4. Environmental finance
5. Matters in limbo and miscellany

If Volkswagen, listed as recently as 2013 as “best in class” on Dow Jones’ Sustainability Index, was actually willing to blatantly defraud consumers and federal regulators, what are the odds that smaller, less well capitalized companies will self-regulate properly when it comes to environmental externalities?

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In 2011, a story appeared that seemed to capture the essence of the N.C. legislative leadership’s feelings about DENR, the State environmental and natural resource regulatory agency. The story, first attributed to Speaker of the House Tom Tillis, said that an Appropriations Commitee co-chair, Rep. Mitch Gillespie, had drawn a bullseye on his legislative office window so that it lined up with his view of the Archdale Building, long time DENR headquarters. The story’s intrigue deepened when Rep. Gillespie left the legislature in 2012 to join Gov. Pat McCrory’s administration as an Assistant Secretary …. of DENR. By most accounts, Rep. Gillespie did a fine job while at DENR, as one might expect after his years of paying close attention to environmental issues and asking good questions on the legislative Environmental Review Commission.

But with Gov. McCrory’s signature on the 2015 Budget Bill, S.L. 2015-241, on September 18, DENR went away. It became the “Department of Environmental Quality.” Several of its formerly important functions were transferred to other departments. Over the last twenty-five years, the erosion in size and power of North Carolina’s main environmental agency has been so striking as to count as “defenestration,” with Rep. Gillespie’s office window bullseye adding a new layer of meaning to that term. But the erosion really began in the late 1990s, during the administration of Gov. Jim Hunt.

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(Above: Change in extreme precipitation events in southeastern U.S., from National Climate Assessment 2014).

Whatever your take on projections of sea level rise and global temperature increases (I’m extremely worried: these things are happening and we are responding much like the 2014 UNC Tarheel football defensive unit responded to threats, which is to say, hardly at all), and whatever your beliefs about the likelihood of future droughts in the southeast (I don’t think the data support any confident predictions one way or the other), it’s hard to ignore the trend to increased extreme precipitation events (see banner image above). The graph shows percent changes in the annual amount of precipitation falling in very heavy events, defined as the heaviest 1% of all daily events from 1901 to 2012. The far right bar is for 2001-2012. In recent decades there have been increases nationally, with the largest increases in the Northeast, Great Plains, Midwest, and Southeast. Changes are compared to the 1901-1960 average. (Figure source: NOAA NCDC / CICS-NC).

This trend makes the law and policy of stormwater management more important than ever before in this country, region and state.

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