News

Charges dropped against Durham protesters in Confederate statue incident

Durham District Attorney Roger Echols dropped the remaining charges against protesters accused of helping to topple a Confederate statue last summer.

The move came a day after District Court Judge Frederick S. Battaglia Jr. threw out charges against two other suspects and a third was found not guilty.

Echols, who previously signaled he would take into account the political atmosphere and circumstances when bringing charges, said he believed misdemeanor charges were appropriate.

Durham District Attorney Roger Echols

“Acts of vandalism, regardless of noble intent, are still violations of law,” Echols said in a statement Tuesday.

But the evidence for the remaining five suspects was much the same as that against those whose charges were dismissed on Monday, Echols said.

“For my office to continue to take these cases to trial based on the same evidence would be a misuse of state resources,” Echols said.

Whitley Carpenter helped represent the defendants as part of the Southern Coalition for Social Justice’s Criminal Justice litigation team. She applauded Echols’ decision Tuesday.

“The statue that was torn down was a symbol of white supremacy that has no place in front of the public buildings that represent our community,” Carpenter said in a statement.  “We applaud the District Attorney for finally dropping the charges in this case.  It’s time for us to recognize that these symbols of hate create division within our communities.  We need to make monuments to the ill-conceived project of white supremacy a thing of the past.”

Commentary

National experts assail Trump’s latest healthcare treachery

In case you missed it, the Trump administration has launched yet another outrageous attack on the Affordable Care Act today. Under the new proposed rule, the ACA ban on junk/sham health insurance policies would be, in effect, repealed. This is from an assessment by the experts at Families USA:

“The draft rule released by HHS allows insurance companies to sell sham insurance plans that do not cover essential health benefits or preexisting conditions, protections that are required under the Affordable Care Act (ACA). More specifically, the rule allows short-term, sham insurance plans, which currently may only be sold for a coverage period of 3 months, to be sold and marketed for up to 364 days. These sham plans can include fine print that, for example, would exclude coverage of asthma, diabetes, or cancer treatments, exclude critical services like pharmacy or maternity care, or include hidden limits, like covering only two days or no days of hospital care a year.”

Families USA executive director Frederick Isasi says the proposal would have disastrous consequences:

“The consumers who buy these plans won’t be the only ones harmed by the Trump administration rule. These sham plans are likely to cause the price of comprehensive coverage to escalate if healthier individuals and families exit the marketplace where comprehensive coverage is sold and instead buy these junk policies.”

Experts at the Center on Budget and Policy Priorities were also highly critical:

“The proposed rule change would roll back 2016 regulations defining short-term plans as those lasting less than three months, defining them instead as those lasting less than one year. It will be open for public comment until April 23.

Because short-term plans offer less coverage and can deny coverage or charge higher prices to people with pre-existing conditions, they offer lower premiums for some healthy consumers than comprehensive plans that comply with the Affordable Care Act (ACA). As a number of groups representing both insurers (such as America’s Health Insurance Plans and the Blue Cross Blue Shield Association) and consumers (including CBPP) have warned: “If short-term plans are allowed to be sold as a long-term alternative to regular health insurance, they will attract healthier consumers away from the regular insurance risk pool and endanger people’s access to comprehensive coverage.”

Compounding the problem, the tax law enacted in December will, in 2019, end the ACA’s individual mandate that most people have health coverage or pay a penalty. This year, the mandate could provide some protection against the expansion of short-term plans because enrolling in one wouldn’t protect someone from having to pay the penalty during 2018. But next year, without the mandate, short-term plans would likely attract more enrollees.”

The center says the change will likely lead to higher premiums in the individual market, the demise of market reforms and access to comprehensive coverage in the individual market, and the exposure of more consumers to gaps and high costs.

The proposal will, in other words, continue the Trumpists’ nefarious effort to undermine a law that they could not muster the votes in Congress to repeal. As such, it is yet another perfect symbol for a dishonest, illegitimate, incompetent and utterly heartless presidency.

Courts & the Law, News

3-judge panel will hear arguments over constitutionality of 2016 special session

A three-judge panel will hear arguments tomorrow challenging a surprise special legislative session from 2016 in which lawmakers made changes to existing power structures in the state.

Common Cause North Carolina and 10 state residents filed suit last year against Lieutenant Gov. Dan Forest, House Speaker Tim Moore and Senate President Pro Tem Phil Berger over the constitutionality of the special session, which was called with just two hours notice and no public disclosure on what bills would be considered.

The lawsuit seeks to void two bills that were passed during that special session: Senate Bill 4 — an omnibus measure that changed the structure of state and county boards of elections, created partisan appellate elections and took some appointment power from the governor; and House Bill 17 — a measure transferring power from the State Board of Education to newly elected Republican Department of Public Instruction Superintendent Mark Johnson.

Both of those bills have been challenged separately in unrelated lawsuits.

The three judges assigned to hear the Common Cause v. Forest case are Judge Wayland Sermons, a registered Democrat who serves the first judicial district, which includes Beaufort County; Judge Martin McGee, a registered Republican who serves Cabarrus County; and Judge W. Todd Pomeroy, a registered Republican who serves Cleveland and Lincoln counties.

The hearing will be held at 1 p.m. Wednesday in courtroom 303 at Campbell University School of Law, on Hillsborough Street.

Commentary

Editorial: What NC can and should do about gun safety

There’s an excellent lead editorial in this morning’s Charlotte Observer that spells out a logical path for North Carolina in the aftermath of last week’s assault weapon massacre at a Florida high school.  The editorial points out that after Congress failed to act in the aftermath of the tragedy in Newtown, Connecticut, state officials took matters into their own hands:

“In the aftermath of Sandy Hook, state lawmakers passed and Democratic Gov. Dannel Malloy signed a package of strong gun measures. The package expanded a ban on the sale of assault weapons and required the registration of existing assault weapons and high-capacity gun magazines. It launched a registry of weapons offenders and mandated background checks for all sales of firearms.

It worked. As the New York Times reported Sunday, gun deaths started to drop after the laws passed. In four years, the number of deaths resulting from firearms – including homicides, suicides and accidents – fell from 226 to 164….With few exceptions, states with the strictest gun control measures have the lowest rates of gun deaths. North Carolina does not; we’re 23rd in the country in firearm deaths per capita, according to the Giffords Law Center to Prevent Gun Violence.

To be more precise: In Connecticut, Nikolas Cruz could not have legally purchased the AR-15-style rifle and high capacity magazines he used to mow down the victims in Parkland, Fla. In North Carolina, he could have.

Changing that – and passing other tough gun control measures – is harder in our state thanks to North Carolina’s Republican-led General Assembly. But that doesn’t mean Gov. Roy Cooper, a Democrat, shouldn’t try. As North Carolinians grapple with the possibility of a Florida mass shooting happening here, Cooper should call for lawmakers to address the spiraling toll of gun violence. He should follow up by working to help legislators introduce tough gun measures like Connecticut’s, as well as other sensible measures such as raising the minimum age for gun purchases. If we don’t think 18-year-olds have the maturity to hoist a beer, they sure shouldn’t be able to lift and fire their own semiautomatic weapons.

That legislative package also should include measures that address the mental health issues that Republicans often cite as the cause of mass shootings. Confronting gun violence shouldn’t be about choosing one party’s preferred approach, and there is no one law that will prevent gun violence. But a package of measures that help lessen the chance of the next deadly day is one worth passing.”

While the Observer concedes that such action would no doubt meet resistance from the gun lobby and its de facto employees in the Republican leadership at the General Assembly, it urges Cooper to, at a minimum, try to make a record of that resistance so that voters will know where their lawmakers stand come November. Amen.

Environment

Loopholes in the draft coal ash landfill rules; two public hearings scheduled this week

Duke Energy’s Mayo plant near Roxboro (Photo: Duke Energy)

The public hearing started with an apology and without many members of the public.

Only four days before, the NC Department of Environmental Quality had published a notice on its website that it would hold the first hearing on 89 pages of draft rules governing coal ash landfills. It wasn’t surprising then that the seats in the Person County Office Building in Roxboro last week were largely occupied by DEQ employees. 

“I apologize,” said Ellen Lorscheider, chief of the Division of Waste Management, who attributed last-minute changes and legal review for the short notice. “We wanted to take public comments now” to meet future deadlines set by the Environmental Management Commission to put the rules in place, she added.

However, the notice requirement is 15 days, said Megan Kimball, attorney with the Southern Environmental Law Center. She questioned whether DEQ was “serious about accepting public comment,” considering the late notification.

The second and third hearings are scheduled for this week:

  • Tuesday at the Myers Center Meeting Rooms at Gaston College, 201 Hwy. 321 South, Dallas;
  • Thursday U-170 building at Cape Fear Community College, 411 N. Front St., Wilmington.

Both meetings start at 6 p.m.

The draft rules about coal ash landfills incorporate state law with federal Coal Combustion Rules, passed by Congress in 2016 as part of the WIIN Act.  (Coal ash impoundments are different than landfills. The former are unlined, seeping pits, regulated under the state’s Coal Ash Management Act. The latter are lined and have leachate collection systems, but by no means environmentally foolproof.)

The CCR rules allow states to regulate their own coal ash landfills, as long as their rules are at least as stringent as the EPA’s. These draft landfill rules cover activities related to construction, design, closure, recordkeeping, monitoring, recycling and post-closure. However, they do not apply to clean up or enforcement, said Ed Mussler, permitting branch supervisor in the Waste Management Division.

Several provisions in the draft rules appear to contain loopholes that could be exploited by Duke Energy or any owner of a coal ash landfill, as it builds new facilities.

  • Coal ash landfills can be expanded. The landfill owner does have to apply for a permit amendment if the tons of waste increase by greater than 10 percent; if the landfill boundaries expand from the original site plan (which could mean the landfill could be built higher but not wider); and if the landfill has a new owner.

And because of House Bill 56, passed last year by the legislature, landfills can qualify for “life-of-site” permits. Previously there were regularly schedule permit renewals, which allowed for public comment on the landfill and its operator. The opportunity for public participation in the permitting process is now sharply reduced.

  • The landfill permittee shall “take all reasonable steps to minimize releases to the environment,” the draft reads, “and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.”

However, “reasonable” is not defined and subject to interpretation.

  • The rules do require a site characterization study. It would include mapping businesses, schools, homes, public and private water supplies, zoning, other areas of contamination, and floodplains, among other features.

There is no requirement for an environmental justice analysis to determine if communities of color or low-income neighborhoods would be disproportionately affected. In addition, the rules require new or expanded landfills (in width, not height) to establish only a 300-foot buffer between the facilities and property lines for monitoring purposes. That is equivalent to the length of a football field.

New landfills require only a 500-foot buffer between it and existing homes and wells. A 100-foot minimum is required between these landfills and surface waters.

  • Landfill permit holders aren’t required to get approval from local governments to place a facility. Presumably, though, a landfill would have to comply with zoning regulations.

The draft rules do not address coal ash contamination that has seeped from the unlined impoundments into the groundwater and drinking water; the Coal Ash Management Act regulates the groundwater impacts.

Hope Taylor, executive director of Clean Water for North Carolina, said she is concerned that some of the draft rules for landfills could be applied retroactively to the impoundments. “I’m concerned about the water supply and increasing contamination. We need to get the ash out of the groundwater.”

Duke Energy plans to dewater the impoundments at its Mayo and Roxboro plants, line and cap them, leaving the coal ash in place. The utility maintains that excavation would create more environmental problems. It would also be very expensive.

“The effluent runs through my property,” said Doyle Peed, who owns 56 acres behind the Mayo plant. “It’s not proper to store the coal ash. It needs to be removed. We need to make sure there are no loopholes so old ash pits can contaminate forever.”