• Why do states stifle their own environmental regulatory innovations?

    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.

    A starting point for understanding the Hardison amendments is to review Sen. Hardison’s own explanation of them, in this video clip from 1985:

    Sen. Harold Hardison on the Hardison amendments

    As with most political talk Sen. Hardison’s statements in defense of his eponymous limits on state action don’t hold up well to critical review. He says, in essence: if there are federal regulations on something then everyone ought to follow them, and only them, because the air moves across state jurisdictional boundaries. If there are no federal regulations on point, we can do whatever we want (“the sky’s the limit”). And, he adds, I just allowed more appropriations for an expensive environmental lawsuit (the State of North Carolina spent millions of dollars in a futile attempt to stop the City of Virginia Beach from building a sixty-mile pipeline to withdraw water from Lake Gaston). Implicitly, he is saying, stop the criticism of the Hardison amendments and appreciate that I’m spending public money on the environment.

    Analyzing Hardison’s rhetoric

    To briefly break down Rep. Hardison’s explanation: water and land-based pollution often do not cross state lines, nor does all air pollution. Further, the impact of all those forms of pollution can vary quite a lot depending on the particular places and people who are exposed to them. In environmental science parlance, the fate, transport and receptors for pollution may vary widely depending on local conditions. Also, the federal government (like the State of North Carolina) often sets its environmental standards as a “floor,” that is, a minimum level, explicitly acknowledging that there may be communities that would prefer more protection. Finally, for purposes of this quick critique, there is much more to environmental regulation than just the standards themselves. The ways that pollution is measured, monitored, controlled and responded to can matter more than a numeric standard itself, making environmental regulation rarely a simple question of “more or less stringent.”

    Then there is the fact that the lawsuit over Virginia Beach’s water withdrawal had much more to do with local politics—particularly the concerns of property owners around Lake Gaston—than it did with actual environmental consequences. It was driven in large part by then-Senator Jesse Helms’ public promise that “not one drop” would flow through that pipe.

    I used to be disgusted, now I try to be informed

    I used to be disgusted by the wildly illogical and superficial political rhetoric that frequently flies around environmental decisions. Now, at least older, if not wiser, and under the influence of that great modern lyricist, Elvis Costello, I try to be amused. Beyond amusement, I try to accept that political rhetoric isn’t mainly about logic, but can be informative about the speaker’s beliefs about what is persuasive. What I take from Sen. Hardison’s statement is that he mainly cared about the money, and assumed his audience, or those in his audience that mattered to him, would as well. Hence his shifting of the reporter’s question from the motivation for the Hardison amendments to his recent support for an appropriation.

    This approach to interpretation of legislative pronouncements means, though, that we can’t take the words of bill sponsors or legislative leaders, on their face, as true explanations of legislative intent. North Carolina law officially doesn’t do that anyway, since unlike Congressional legislative history, we have no official record of all the statements about a bill as it wends its way through the sausage grinder  legislative process. This does not and probably will never prevent individual legislators from claiming that their recollection of “what we meant to do” should be taken as gospel.

    Judges and executive branch agencies who must interpret statutes as a part of their job are thus often faced with the difficult task of making meaning out of legislative language without any official texts or statements to explain that language. My colleague Milton Heath has spent years compiling and analyzing canons of statutory interpretation, to try to bring some sense of predictability to this problem of meaning-making.

    My general approach to legal (including statutory) interpretation

    When we are less concerned with application of loose legislative language to particular decisions, though, and more interested to learn what a law’s overall consequences will be, or what it tells us about the preferences of the lawmakers, we have to call on all available evidence and our accumulated and collective experience about the behavior the law affects. Vague as it may be, that’s the spirit in which I will approach legal interpretation in this blog.

    Hardison amendments as quick and dirty legislative shut-off valve

    For the Hardison amendments, then (the 1970s) as now (the 2010s), I interpret them as mainly about legislative fear that the executive branch was not as controlled as a majority in the legislature wanted it to be. For state legislatures then, as now, the problem of agency discretion is a huge one. On the one hand, the modern economy is capable of producing bad environmental outcomes quickly, widely, deeply and sometimes tragically, and this calls for an executive branch that is technically savvy, nimble and legally powerful enough to keep those bad outcomes under control. Legislative processes, at least at present, just aren’t set up to bring the necessary degree of flexibility, speed and technical expertise to bear on environmental problems. On the other hand, legislatures are always highly protective of their power and guard it jealously, and the law (the Constitution) requires that it be that way—that there be politically-authorized legitimacy and reasonable bounds on agency discretion.

    At times when the legislature feels a need to reign in that discretion—as it did in the 1970s, on the heels of the passage of major State and federal laws that still form the core of environmental law, and again in the 2010s, when the majority in the legislature reverted to the Republicans after more than a century of Democratic dominance—it turns to devices like the Hardison amendments, devices that could be said to stifle regulatory innovation, but that also give a quick and easy way to “keep a lid” on things.

    The longer-term problem remains

    Like a plumbing or gas leak that is temporarily resolved at a main shutoff valve, the Hardison amendments help those in power feel more secure, but don’t solve the longer-term problem. The real test  is whether the lack of trust within the government  can be overcome, at least to a level that returns each branch of government to an appropriate and useful balance of innovation and predictability. The way to grade this test is to observe how the State deals with new and unforeseen, or old and unsolved, environmental problems at the state level. What are the actual consequences of the Hardison amendments? And who is paying attention to those consequences? There is no doubt there will be occasions in the next few years to study and reflect on these questions, since pollution problems are endemic, and we have not made much progress on some of them since the days when Harold Hardison controlled powerful committees and purse strings in the legislature. In fact, North Carolina has already begun facing just such a major challenge, in the form of coal ash, in response to a major spill that happened one year ago today.  We will see over the next several years how well the legislature and the executive branch can learn to face that challenge together.

    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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