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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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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(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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Back in the early days of the Coastal Area Management Act, North Carolina locked in a policy position regarding permitted uses of property next to water: the uses had to be “water dependent” or else they were not permitted.  This policy was based on some science that showed water pollution increased significantly the more there were commercial and industrial uses next to the water.  Some restaurateurs along the historic river walk in Wilmington chafed at that policy, and so in the mid-1990s I found myself walking beside the lower Cape Fear River with Joan Weld and Linda Rimer, then the two assistant secretaries for natural resources and environment in the State.  The capable division director of the Division of Coastal Management, Roger Shecter, presented the thinking underlying the policy.  But we agreed with the restaurant owners: it was better for the environment to get people back around the water, where they could enjoy the fruits of decades of regulatory efforts to clean up our rivers.

Our heads are round so thought can change direction.  ~Allen Ginsberg

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What’s your favorite place to sit back and listen to the world? Mine is the porch of an old log cabin up in the Blue Ridge. The greatest thing about that place is that it sits high up over a stream as it drops through a steep gorge–high up, but still close enough to hear the water flowing and falling, constantly, soothingly. That movement of water through our world is absolutely fundamental to life as we know it.  That’s one reason that the sound of a mountain stream or of ocean waves (or in their absence, an urban fountain or garden water feature) is so deeply satisfying to humans. But that incessant movement of water also makes it hard to fit into traditional, naive notions of property rights. In two earlier posts, I discussed some ways in which water, especially groundwater and stormwater,  challenge and extend our understanding of property.  Now let’s consider surface water when it is collected into streams, rivers and lakes, again focusing on the law of North Carolina (which is very similar to the law of most eastern states in the U.S.).  In this entry I’ll refer to water collected into streams, rivers and lakes as “surface water” even though there is a lot more to be said about “diffuse” surface water, aka “stormwater,” but that must await Part 3.

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This is the way the question often comes to me–who owns it?–as a way of asking either who controls water in NC (for beneficial purposes) or who is responsible for it when it does harm (e.g., flooding). Framing the question this way is an unsurprising reflection of the importance of property rights in American law. And property rights do matter for water law. But water, the great solvent, has a way of dissolving preconceptions about ownership of property and forcing anyone who really cares to reexamine their understanding of ownership itself. Things, like water, that are always moving, often in mysterious ways, and that are so vital to us that we can’t imagine life without them, just don’t fit well in simple definitions of “property.” To make matters especially complicated for water, the law has come to treat its ownership very differently as it moves through the eternal cycle in which it always moves: from ocean to sky, back to earth as rain (“stormwater”) or snow, then either infiltrating into the ground (groundwater) or into streams and lakes (surface water), and then passing through myriad human channels, including our own bodies, on its way back to the sea. In this post, I will outline the way NC law treats ownership of groundwater–probably our biggest and ultimately most important store of freshwater.

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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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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.

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