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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A part of the waste map that gets less public attention these days than in the 1980s and 1990s, hazardous and radioactive waste are primarily regulated at the federal and state levels of government. The relative lack of media attention to these wastestreams so far in the 2000s and 2010s should not obscure their importance to the structure of environmental law in the United States. The large body of federal and state laws that regulate hazardous waste management has been central in forming the general public understanding of how environmental law works as a “command and control” system. Ironically, the national and state successes in getting hazardous and radioactive waste problems off of the front page of the newspapers blogs and off of television news has, in my opinion, also contributed to the lack of awareness of how useful, important, and yes, efficient government regulation can be.

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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.”

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