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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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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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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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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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.”

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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.

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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.

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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.

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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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