• Local government and the environment: preemption

    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.

    The basic law of state preemption of local action in North Carolina is set out in G.S. 160A-174, which is applicable to all local units of government. The hardest questions in the environmental field tend to be when “a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.”

    The state supreme court interpreted this language to have a very broadly preemptive effect in striking down a county ordinance and identical county health board rules regulating swine farms. See Craig v. County of Chatham, 356 N.C. 40 (2002). Since the Craig case, North Carolina courts have been generally hostile to local efforts to vary state or federal environmental law, especially when the economic interests that would be regulated are powerful interests. In fact, this judicial conservatism on preemption questions goes back further to a case from Halifax County involving local efforts to regulate tobacco smoking. To vary the regulation of pigs, tobacco, or other major politico-economic sectors in the state, when there is already some substantial degree of state regulation, seems to require an especially clear grant of authority to local government.

    Several state environmental programs expressly allow local governments to enact more stringent requirements or take full administrative responsibility for a given regulatory program. Many, but not all, of these provisions require state approval of the local program before the delegation is made or the local enactment is effective.  For example,  riparian buffer protection requirements (G.S. 143-214.23) and the venerable Erosion and Sedimentation Pollution Control program.

    Another class of legislative attempts to sort out the confusion over the limits of local environmental regulatory power are statutes that set up special administrative provisions for review of allegedly-preempted local ordinances. Two such statutes appeared in the State’s response to North Carolina’s hottest environmental controversies in 2012-2014: fracking and coal ash. These statutes borrowed an approach from the fights over proposed locations for disposal of hazardous and radioactive waste in the 1980s and 1990s.

    In this approach, some particular new boundary is put on the local power to act (for example, with fracking, that a locality cannot act in a way that has the effect of preventing fracking within its jurisdiction). Then, if someone feels the local government has gone too far and breached this boundary, an administrative process is created for review of the local ordinance by some state administrative agency. In the case of fracking appeals, that is the Mining and Energy Commission (to become the Oil & Gas Commission in July 2015).

    The new wrinkle for local government’s role in environmental regulation, and understanding when that role is preempted, is how these particular new boundaries will be interpreted, and how these administrative processes will work.  No one knows these answers for sure, since the original versions of this administrative approach to local preemption were never tested, and the new versions have yet to be.

    Richard Whisnant joined the School of Government (then the Institute of Government) in 1998. Prior to that, he was general counsel with the NC Department of Environment, Health & Natural Resources. He had previously practiced environmental law with Robinson, Bradshaw & Hinson, in Charlotte, North Carolina, and was a clerk for the Hon. Sam J. Ervin III on the US Court of Appeals for the Fourth Circuit. Whisnant earned a BA from the University of North Carolina at Chapel Hill and an MPP and JD from Harvard University.

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