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.
[photo by CochranCJ ]
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:
- A Preindustrial era of purely local control (1700s to 1900)
- Early industrial era of State floors with local flexibility (1900 to 1970)
- Late industrial era of federal mandates with potential State flexibility, limited in NC by the legislature (1970 to 1990)
- Postindustrial era of federal and State “devolution” of power, yielding many localized or “place-based regulations” (1990s to 2010)
- 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.
Canard: 1. a groundless rumor or belief. 2. (French) ‘duck,’ from Old French caner ‘to quack
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?
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.
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.
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.
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:
- Changes that reduce public environmental information
- Changes that allow more pollution, or more development in environmentally sensitive areas.
- Environmentally protective changes
- Environmental finance
- 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?
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.
(Above: North Carolina has a significant number of major water withdrawers that rely on the “run of the river”–in other words, that rely on there being enough water in a stream for their own purposes, with no storage. The misconceptions noted in this blog post make such withdrawals very insecure in times of drought).Continue Reading
(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.
It’s not necessarily helpful to analyze water law problems in ownership terms, as I’ve discussed already in Part 1 (groundwater) and Part 2 (channelized surface water) of this series. But many people, Americans at least, can’t help themselves from trying to see problems through the lens of property law. Judges and legislators in N.C. have also long been afflicted with this property law primacy. So I’ve learned, pardon the phrase, to go with the flow on this question of “Who Owns the Water?” Water, like wild animals, makes for its own interesting perspective on property law. It can teach us that our commonly-held notions of what it means to “own” something are not always accurate or adequate.
So in this post I will wrap up my discussion of “Who Owns the Water” by plunging into another murky part of the pool: who owns the stormwater? In other words, when it rains, who owns the water that falls before it makes its way into the channels we call “intermittent” and “perennial” streams, or else before it infiltrates into the soil to become groundwater?
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
The legislature agreed. See S.L. 1997-337; 2007-485. Today it’s not just Wilmington, but also many cities (and other local governments) all over the United States who have decided to reinvest in their natural capital, rivers and streams, by encouraging people to visit, walk and perhaps sit and enjoy some food and drink. RiverLink in Asheville has helped that city’s long, hard efforts to reinvigorate the French Broad, so that today Asheville has both beautiful riverside parks and the River Arts district. Charlotte has put in huge work, particularly in the Uptown area along Sugar Creek, but also, with and throughout Mecklenburg County, in their SWIM program. Durham’s work on Ellerbe Creek is now understood not just as building a local amenity, but helping to solve one of the region’s biggest and thorniest water problems, the nutrient over-enrichment in Falls Lake. In South Carolina, Greenville has built its fantastic downtown revitalization around Falls Park on the Reedy.
The list goes on and on, as I found out recently when reviewing some foundation funding proposals for local water-related projects. It’s not just the big city, well-funded efforts: throughout the Southeastern United States, there are communities of every size that have planned and in some cases implemented river walks and other ways to get people back around the water. In fact, the list is so large and great that I want an app that will help you and me get to these places.
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.
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
newspapersblogs 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.
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.
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.”
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.”
The waste map
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.
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.
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.
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. Continue Reading
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.
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.
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.
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.
North Carolina passed a series of laws in the 1970s that prevented its agencies and local governments from creating environmental regulations that were more stringent than federal regulations. These laws were called “Hardison amendments” in reference to then-Senator Harold Hardison, D-Lenoir, who chaired several important legislative committees, notably the Appropriations Committee. Environmentalists lobbied long and hard and finally succeeded in removing the Hardison amendments in the mid-1980s. For the next thirty years, North Carolina was often a national leader among states in innovative environmental regulatory approaches. But in 2011, with the return of a Republican majority to both legislative chambers for the first time since 1870, the legislature reinstated the Hardison amendments, in slightly altered form (GS § 143B-279.16). Understanding the rise, fall, and restoration of North Carolina’s Hardison Amendments helps explain the political dynamics of environmental regulation at the state level in the United States.
Since 2012, North Carolina has been on a fast and furious quest to create an entirely new regulatory regime for oil and gas production. The intertwined issues of whether and how to create such a regime to encourage fracking in North Carolina became and remain central enviro/political questions for the state. In 2012, a legislature newly controlled by the Republican Party (for the first time since Reconstruction) directed that regulations be put in place to encourage oil and gas exploration, and quickly. The central institutional actor charged with doing this has been a new State commission, the Mining and Energy Commission. The MEC is made up, as is typical in this and other states, of volunteer political appointees. Could a new group of volunteers really pull off the creation of an entirely new regulatory scheme in little over a year? Environmental rulemaking in North Carolina in the past fifty years has not been about speed or efficiency, and the issues involved in fracking and its regulation are highly technical and politically controversial. So many of us who watch and advise about state environmental law felt this process might just produce a train wreck.