The NC Senate passes its worst polluter protection bill yet, plus more news, this week in CIB.

Legislative Watch: Senate Approves Polluter Protection Act

“Pardon me, officer.”

“Yes, young man? What can I do for you?”

“Well, sir, it seems that I have come into possession of a few hundred thousand dollars claimed by First National Bank. Now, I’m not admitting that I took it from them yesterday, when all those alarms were going off. I don’t want them or the public at large to know I ever had any money that they allege is theirs, and I’m certainly not going to give them any of this money I happen to have in the trunk of my car. And of course I don’t want you to use the fact that I’m telling you all this in any investigation against me. However, I want to assure you that I’m not robbing any banks now and I promise that I definitely won’t be robbing any banks in the future, and I’d like for you and me to agree to let bygones be bygones.”

“I see. Yes, it all seems to be in keeping with the law enforcement principles of the NC Senate, so I think we can consider it a deal.”

This isn’t The Onion. We’re just trying to apply the polluter protection principles of “Environmental Self-Audit Privilege and Limited Immunity” to categories of lawbreaking beyond pollution.

Welcome to North Carolina as envisioned in the State Senate’s version of HB 765, the latest in a foul line of its “Regulatory Reform Acts” but rapidly becoming better known as the Polluter Protection Act. The remarkably-easy-to-parody “self-audit privilege” is just one of a host of provisions designed to rip up the tracks of water and air pollution control in our state. This bad act passed the Senate last week on a nearly party-line vote and goes to the House. Environmental quality advocates will be spending much of this week lobbying the House to reject the bill when the legislature returns from its week-long break next week.

Among the other problems in the bill:

• It severely limits state protections for isolated wetlands and intermittent streams, both of which can be critical to protecting clean water in other streams and rivers across the state.
• It attempts to chill private individuals from contesting state projects or permits for polluting activities, by requiring courts to force them to pay the state’s attorney fees if they lose the challenge. (Such awards of “attorney’s fees” are normally considered by the court in its discretion and granted only when the claims filed were frivolous.)
• It further tilts the field in favor of applicants for air pollution permits by mandating that a permit issued by the state will go into effect even when it is challenged in court by a private party who would be injured by it. (It’s almost unheard of for a court to order a permitted plant or operation to shut down after it’s up and running.)
• It would require the state’s air quality protection agency to shut down about half of the air quality permitting stations now in operation. (And unfortunately, what we don’t know that we’re breathing in our air can indeed still hurt us. Plus, such willful blind spots in our monitoring network makes effective regulation that much more difficult.)

For more details on these and other polluter protection items in HB 765, read here.

More than citizen conservation advocates have panned the Polluter Protection Act. Editorialists around the state have called for the House to kill this mutated version of HB 765. Here’s one sample editorial.

Washington Watch: Supremes Require New Air Rule Review

Three years after a key clean air rule was finalized by the Environmental Protection Agency (EPA), the U.S. Supreme Court called a technical foul on the agency’s calculations in developing the rule, and sent it back to a lower court for further review.

Fortunately, the rule limiting emissions of mercury and other toxic pollutants from coal and oil-fired power plants has been in effect during that period. Most immediately impacted utilities – including North Carolina’s Duke Energy – have already made investments and changes to implement it.

A narrow 5-4 majority of the Court ruled that the EPA had improperly ignored implementation costs in its initial stages of considering whether to regulate the toxic pollutants covered. The Court minority (as well as other supporters of the rule) rejoined that the agency made extensive analyses of costs during later stages of the rulemaking process, and found that the benefits greatly outweigh the costs.

As a result of these factors, legal observers question how much ultimate impact this decision will have on the air pollution control efforts. Many point out that the record of evidence used by the EPA is sufficient to support reaching the same substantive decision, and nothing prevents the agency from doing so.

Perhaps more telling than the court decision itself was the reaction of some politicians to it. Some used the decision to criticize as “damage” the life-and health-protecting investments already made by power companies in complying with the pollution limits. (Sen. Richard Burr, quoted in the article linked above, said “Unfortunately, much damage has already been done in this case” – as he asserted without evidence that the pollution controls have cost jobs, and ignored their benefits in health protections and cost savings from sickness avoided.)

Conservationists commend the dissent’s sound reasoning in the Supreme Court decision, and encourage the lower courts and the EPA to make short work of filling in the blanks on the new paperwork required by the majority.

Judicial Watch: State Supremes Hear Commissions Appointments Case

It’s a showdown over executive versus legislative branch authority, with implications for how environmental policy is set in North Carolina. The NC Supreme Court last week heard arguments in the dispute between the governor’s office and the General Assembly over who has the authority to appoint a controlling majority of regulatory commissions. While this lawsuit deals with three specific commissions, a ruling in favor of the executive branch could impact other boards as well, including the Environmental Management Commission and the Coastal Resources Commission, among others.

The claim being advanced by incumbent Gov. Pat McCrory, joined by former governors Jim Martin and Jim Hunt, argues that rulemaking commissions are inherently part of the executive branch under control of the governor, and the legislature cannot be allowed to control them through appointments.

Attorneys for the legislature argued to the contrary, that the NC state constitution gives appointive powers exclusively to the legislative branch, which may choose to delegate them or use them directly. A three-judge special panel sided with the governors in March. The final decision is up to the state Supreme Court.

Environmental Opportunities: Development Director, NCLCV

NCLCV is seeking a Development Director to lead the implementation of its overall strategy for fundraising to support its work for a clean environment. To review the details on this challenging position, visit our website.

Conservationists: Alice Zawadski

The conservation community this week is saddened by the unexpected loss of Alice Zawadski, a long-time leader of efforts to protect our state’s natural beauty and diversity. Alice was best known for her passion for the conservation of rare North Carolina wildflowers and other native plants.

Alice taught chemistry and physics at St. Mary’s in Raleigh for 24 years prior to her retirement. Her long service to the conservation of North Carolina’s natural environment included work as a member of the boards of Wake Audubon, the NC Native Plant Society, NC Friends of State Parks, and the NC League of Conservation Voters Foundation. Her cheerful and warm personality will be missed by all her widespread friends, but she left a legacy of conservation of the wild plants and natural habitats of our state.

That’s our report for this week.