• Local government and the environment: the Constitutional starting point

    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.

    Article XIV, Section 5, of the North Carolina Constitution provides the following:

    It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open lands, and places of beauty.

    The North Carolina Supreme Court handed down a dramatic decision in the summer of 1998 that in essence declared this section to give direct power to local units of government “to regulate our waters.” Smith Chapel Baptist Church v. City of Durham, 348 N.C. 632 (1998) (Smith Chapel I), superseded on rehearing. On rehearing, however, a divided supreme court superseded its earlier opinion and struck down the stormwater ordinance in question on different grounds. The final opinion gave no interpretation of Article XIV. Smith Chapel Baptist Church v. Durham, 350 N.C. 822 (1999), superseding Smith Chapel I. The legislature got in the final word (perhaps) in the 2000 session by passing a bill that retroactively allowed the stormwater financing mechanism that led to the lawsuits.

    Prior to the Smith Chapel case, the only published decision construing Article XIV, Section 5, was Rohrer v. Credle, 322 N.C. 522 (1988), which involved ownership of submerged lands and relied on the constitutional provision just to bolster its argument for public trust rights in those lands. This constitutional provision was also cited in Parker v. New Hanover County, 619 S.E.2d 868 (2005) in support of the public nature of and county’s authority to charge special assessments for relocation of a coastal inlet.

    The ultimate meaning and importance of Article XIV, Section 5, remain unclear. Is it a direct constitutional authorization of North Carolina local government action to protect the environment? It is certainly possible to read it that way, without at all straining the plain meaning of the words: it’s proper for the “State…and its political subdivisions . . . in every other appropriate way to preserve.”  For an analysis of the constitutional amendment’s history that argues in favor of “environmental home rule” in North Carolina, see Milton S. Heath Jr., North Carolina Environmental Bill of Rights: Origins and Implications (memorandum) (Chapel Hill, N.C.: Institute of Government, January 1999).

    Until an appellate court determines whether this constitutional language directly authorizes North Carolina local governments to conserve natural resources and protect the environment, local jurisdictions will be left in the environmental arena, as in other areas of their work, needing to find legislative authority for any environmental efforts to be sure they are on a solid legal footing.

    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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