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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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.

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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.

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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 (originally the new language was added as GS § 143B-279.16; it was later re-codified into the Administrative Procedures Act as GS § 150B-19.3). 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.

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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.

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