North Carolina’s authority to handle its own water and air quality permitting is in jeopardy. This week in CIB.

Administrative Watch: EPA Warns State Not to Shut Out Citizens

The U.S. Environmental Protection Agency (EPA) has warned the NC Department of Environmental Quality (DEQ) that North Carolina’s administration of clean water and air permitting programs in the state is in jeopardy. DEQ’s attempt to shut citizens out of permit cases that directly impact them is the reason.

A letter dated 10/30/15 from the EPA Region 4 Administrator to DEQ Secretary Donald van der Vaart makes the situation clear. In two recent cases (one an air emissions permit and the other a water discharge permit), state administrative law judges (ALJs) ruled that affected citizens had no right to challenge the permits in a contested case. The ALJs decided that state law (Administrative Procedures Act) ruled that out. The EPA Regional Administrator’s letter tells DEQ that if those decisions stand, then the state’s authority to administer the federal programs is likely to be withdrawn.

The letter states bluntly, “[T]he recent [case] decisions cast serious doubt on whether North Carolina’s authorized [clean water and air] programs can satisfy the minimum requirements for citizen access to judicial review of environmental permits going forward.”

In its implications for our state’s administration of environmental law and protection programs, this would be an earthshaking result. No longer could businesses, industries, land developments, or even road projects that required any one of a number of key environmental permits go through state reviews for approval. Instead, all would have to go through the regional (Atlanta-based) EPA office with all the delays that would entail. The very fact that the EPA Regional Administrator felt compelled to advise the DEQ Secretary of this risk indicates the extraordinary seriousness of the situation.

In fact, it’s a red flag of just how badly the administration of environmental protections has gone off the rails under this Department and Administration in our state.

The logic of EPA’s alarm bell is equally clear. If the people who would be directly impacted by the pollution from a project don’t have the legal “standing” to challenge the terms of the project’s permit and have their complaint heard, then what recourse do they have to protect themselves? That’s a result that the federal Clean Water Act and Clean Air Act never intended.

A copy of the EPA letter was obtained last Wednesday by the N.C. Coastal Federation’s Coastal Review Online and released to the public.

Broader media coverage of the attention-grabbing legal development quickly followed. “Citizens have a right to challenge pollution permits when the state fails to protect our clean air and clean water,” said Southern Environmental Law Center’s Derb Carter. The EPA has now “clearly warned” NC DEQ that, “if it wants to continue to administer air and water quality permitting programs, citizens must be allowed access to judicial review of permits issued by the state.”

Beginning under former Secretary John Skvarla and continuing under Secretary Donald van der Vaart, the McCrory Administration’s DEQ has adopted “customer-friendly” as its mantra and made clear that citizens impacted by pollution are not the “customers” it means. We hope that the most recent warning from EPA will shake some awareness into this bunch that no one stands to benefit if that one-sided approach continues – not business, not property owners, not state or local government – and certainly not the health of our citizens.

Legislative Watch: NCLCV Releases 2015 Scorecard

The 2015 Legislative Scorecard tells a story…several, in fact, on how NC House and Senate members undermined our clean environmental and clean energy values during the 2015 legislative session.

NCLCV’s Legislative Scorecard is an annual publication dedicated to holding leaders accountable for their environmental record in the North Carolina General Assembly. Each year, NCLCV reviews the key environmental bills from the session and reveals how legislators voted on these critical pieces of legislation.

“With the Polluter Protection Act, rollbacks to clean energy incentives, and reduced regulations on clean air and water protections, we continue to lose ground on the environmental protections that make North Carolina such a special place,” said NCLCV’s Director of Governmental Relations Dan Crawford. “Our representatives continue to prioritize polluters over people; it’s time to remind legislators of their moral obligation to put our constituents ahead of corporations.”

Right now, NCLCV members can get a sneak peek at their elected officials scores (and the Governor’s Report Card) here. The public release is scheduled for this Tuesday, November 17.

NCLCV is asking members to review the scorecard; share it with their family and friends; and consider making a gift to the “Reclaim North Carolina” campaign. All those who make a donation will receive their own hard copy of the 2015 Legislative Scorecard.

Campaign Watch: LCVAF Endorses Hillary

Last week, the League of Conservation Voters Action Fund (LCVAF) announced its endorsement of Hillary Clinton for President of the United States. LCVAF is the affiliated federal political action committee for the League of Conservation Voters (LCV).

In its announcement, LCVAF cited the strong environmental record of Clinton as a U.S. Senator, Secretary of State, and candidate for President. The announcement noted that this represented the earliest endorsement of a presidential candidate in the organization’s history, and reflected its evaluation of the strength of her record and her candidacy.

“When it comes to fighting the climate crisis, the stakes couldn’t be higher – and we are confident that Hillary Clinton is the right person for the job,” said Gene Karpinski, LCVAF President. He cited her “proven history of leadership, strong environmental record, and a campaign committed to building a clean energy future.”

LCVAF pointed to Clinton’s support for climate and clean energy bills reducing carbon and other pollutants from power plants, repealing ‘Big Oil tax handouts’, and investing in solar energy; environmental justice initiatives; and attention to climate change as Secretary of State. Karpinski said, “Hillary Clinton is without a doubt the most effective leader to stand up to Big Polluters and push forward an aggressive plan to tackle climate change and get it done.”

Carol Browning, LCV Board Chair, former EPA Administrator, and Director of the Office of Energy and Climate Change Policy under President Obama, commented “With a history of leadership on the international stage and a commitment to protecting public health, Hillary Clinton is the leader we need to meet the climate crisis head-on.”

LCVAF cited a list of specific pledges Clinton has made for the development of clean energy as president, and noted that it had conducted interviews with each pro-environment candidate prior to making its endorsement decision. The organization announced that it would now undertake a campaign to recruit volunteers for the Clinton campaign in early primary states.

Around the State: Locals Defy Rush to Frack

The small town of Walnut Cove in Republican-voting Stokes County has emphatically declared that fracking is not welcome there.

While the legal authority of the town to enforce a moratorium on fracking permits may be hazy, the views of the town’s voters (and now its town board) are not. Last week, the town’s commissioners voted unanimously to impose a three-year moratorium on fracking permits within its municipal limits.

That action followed an election the previous week in which town voters replaced two commissioners who had last spring supported allowing the drilling of a test well looking for natural gas on town-owned property. The results of the test drilling came back showing the possible presence of gas in shale rock – at a depth which fell squarely within the range of local drinking water wells. Resident outrage over the prospective threat to local drinking water supplies showed in big turnouts at town board meetings, and at the polls.

Local commentators acknowledged that the moratorium could be challenged at the state level if a permit for drilling was sought but noted that the moratorium would at least require would-be drillers to go through the challenge process. Moreover, while the small town has slightly fewer than 1,500 residents, it represents the kind of down-home rural voice that conservative legislators would fail to heed at their own peril.

Said Rev. Gregory Hairston, who led many local opponents of fracking, the moratorium “sends a message to Raleigh that they don’t run this town.” He added, “We don’t have to let the state dictate to us how we run our government.”

We agree, and that’s our report for this week.