agriculture, Courts & the Law, Environment

Waterkeeper Alliance sues state agriculture department over public records request

 

Steven Troxler, commissioner of the NC Department of Agriculture and Consumer Services (Photo: NCDACS)

The Waterkeeper Alliance, known for its role as an environmental watchdog over industrialized hog farming practices, has filed a complaint against the NC Department of Agriculture and Consumer Services for allegedly violating the state’s Public Records Act.

The dispute centers on whether the agency lawfully charged the alliance more than $2,000 to merely inspect public documents. The documents in question were related to potential flood damage from Hurricane Matthew on hog and poultry farms.

A department spokesperson could not be reached for comment, although it is common for agencies to refrain from speaking about ongoing litigation.

The issue dates back to earlier this year, when the alliance filed a public records request on Jan. 20. It asked to inspect “all communications” with the EPA, USDA, FEMA, and any state, city, county government ‘as part of the agriculture’s review, consultation of response to flooding of agricultural operations in North Carolina related to Hurricane Matthew,” which had occurred the previous October.

The alliance also asked to inspect related to the department’s emergency response, proposals and preparedness plans as they related to storm-related flooding of these operations. The group had planned to copy or scan the documents using its own portable equipment.

The group filed a similar request with the NC Department of Environmental Quality, which produced the records in March and allowed the group to inspect them without charging fees.

The records are of interest because when Hurricane Matthew brought historic floods to eastern North Carolina, there were concerns over the integrity of the area’s 3,000-plus hog waste lagoons. Agriculture Commissioner Steven Troxler has maintained no lagoons were breached, but advocates, some of whom flew over the area, said they observed floodwaters topping the brim of some structures.

On March 3,  2017, Tien Cheng, an attorney with the agriculture department, responded that it would require more than 250 hours to fill the request. Cheng estimated that at $18 an hour — the pay rate for a full-time administrative assistant — the alliance would be charged at least $4,000 to inspect the records. However, a week later, a different agriculture department attorney called the alliance and reversed course, saying the group could inspect the records for free.

Cheng went on to write agencies can charge a special service fee when a request requires extensive use of resources. But the term “extensive” has not been defined. And in 2013 and 2014, former Gov. Pat McCrory exploited that vague language to revise public records policy for eight state cabinet agencies. Designed to reduce the number of records requests, those revisions were emblematic of the tension between the McCrory administration and the media and law firms seeking information.

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Courts & the Law, News

NC Supreme Court takes up redistricting, power struggle between Cooper, legislature

The North Carolina Supreme Court heard two major cases this morning — one about redistricting and voting rights and the other about the legislature’s efforts to diminish the Governor’s powers.

In Dickson v. Rucho, a challenge to state legislative and congressional maps, the plaintiffs asked for the case to be remanded back to the trial court for a judgment in their favor.

“We don’t yet have a remedy ordered by a state court,” said one of the plaintiff’s attorneys, Anita Earls, who is Executive Director of the Southern Coalition for Social Justice.

Earls argued that when the court decides federal issues that are contrary to binding precedent from the U.S. Supreme Court, as it did in Dickson and North Carolina v. Covington, the U.S. and North Carolina Constitutions impose a duty to conform its decision to federal law and enter a judgment for the plaintiffs.

She also argued that the state trial court needed to address state constitutional violations, whereas the federal court could not. Earls called the trial court’s finding erroneous and said the plaintiffs deserved a remedy after their rights were impacted by the unconstitutionality of the maps.

“A violation has been shown, it’s now time for remedial proceedings,” she said.

The attorney for legislative leaders, Michael McKnight, argued that the plaintiffs don’t have the ability to file for a remedy because the case is moot.

“There is no case or controversy right now with regard to the 2001 maps they’re challenging,” he said, noting that those maps can’t be used again because of the federal courts’ rulings.

McKnight added that if there is a problem with the new districts once enacted, the plaintiffs would have to file a new lawsuit.

Special Deputy Attorney General Alec Peters argued for the state that the case should be remanded back to the state trial court for a judgment in favor of the plaintiffs.

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The state Supreme Court judges also heard argument in Cooper v. Berger over the General Assembly’s changes to the State Board of Elections and State Ethics Commission, now knows as the State Board of Elections and Ethics Enforcement.

Jim Phillips, the attorney for Gov. Roy Cooper relied on the Separation of Powers clause of the North Carolina Constitution.

He said it is “crystal clear” after an examination of the functions and duties of the Bard that it is executive in nature. Because of that, Cooper should be able to appoint a majority of the Board so that they share his views and priorities.

A provision of the law creating the new Board allows for former Gov. Pat McCrory’s Board of Elections appointment Kim Westbrook Strach to remain Executive Director over the new Board.

Members of the new Board are to be split evenly between Republicans and Democrats, whom Cooper would be required to choose from a slate of people approved by the heads of each party. Phillips said given the choice, Cooper wouldn’t appoint anyone from the list already released.

An example Phillips of an executive function that the Board carries out is early voting. He said Cooper has said he wants to expand early voting, but a Board that doesn’t share his views and priorities could prevent that from happening.

Noah Huffstetler III, who represents legislative leaders, said the General Assembly has the final decision making role in the Governor’s role with respect to the Board.

He said the restructuring of the Board was to better ensure its independence and quasi-judicial nature. He added that Cooper’s argument was “stunning” in that he wants to control people so that they are “robotically inclined to follow his views and priorities.”

“That was not the legislative intent of that statute,” he said of the Constitution.

Phillips said the case was not about a challenge to the the legislature’s restructuring of the entire board.

“The Governor’s challenge is to the General Assembly’s appointment of the Executive Director and the taking from him the ability to appoint a majority of members who share his views and priorities.”

He added that if the Supreme Court remanded the case back to a lower court, they would only end up arguing again back at the high court.

Courts & the Law, News

Local Jones County election process to change after federal Voting Rights Act lawsuit settlement

As part of a lawsuit settlement over a Voting Rights Act violation, Jones County Board of Commissioners will be elected in single member districts instead of at large.

Today is a new day in Jones County, according to a plaintiff in the first federal Voting Rights Act case filed this year.

A settlement was reached Wednesday in a lawsuit filed on behalf of four Jones County residents against the Jones County Board of Commissioners, its members and the Jones County Board of Elections.

The lawsuit alleges that the at-large voting system the Commissioners have long been elected under violates Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices. The system has the effect of denying the African-American voters of Jones County an equal opportunity to elect candidates of their choice, according to the suit.

The settlement will require Jones County to move to a single-member voting system that splits the county into seven areas, which includes two districts in which African-American voters constitute a majority of the voting-age population.

“For too long we have felt like we didn’t have a voice in our local government,” said lifelong Jones County resident Elaine Strayhorn, one of the plaintiffs. “We love this place because it’s our community, so we deserve to have our voices heard too. As a community, we welcome this change.”

Under the current voting system, five Commissioners are elected at-large to four-year terms. An African-American candidate has not succeeded in winning a seat on the Board since 1994.

African-American residents make up about one-third of the county’s total population and about one-third of the voting age population.

The election changes will take place in 2018, and Jones County is enjoined from conducting any elections for the Board using the existing at-large system. In drawing the districts, boundaries were to be compact and not in derogation of traditional redistricting principles, according to the settlement.

As part of the agreed remedy, Jones County will also pay the plaintiffs $10,000 to absolve them from any future claims arising from the matter.

An attorney for the plaintiffs, Jonathan Blackman, of Cleary Gottlieb, said Jones County expressed an interest early on in the litigation process to an agreed resolution.

“This settlement is one that really remedies a longstanding violation of the Voting Rights Act in Jones County,” he said during a teleconference about the settlement.

The complete details of the settlement and the makeup of the seven new districts can be found here.

Courts & the Law, Environment

Court decision out of DC could portend trouble for Atlantic Coast Pipeline

Hundreds of people turned out in Rocky Mount to comment on the water quality, riparian buffer and climate change impacts of the Atlantic Coast Pipeline. (Photo: Lisa Sorg)

During the state’s public hearings and listening sessions about the controversial Atlantic Coast Pipeline, many concerned citizens talked about how the $5.5 billion project would contribute to climate change. Natural gas is a fossil fuel. The fracking operations in West Virginia, the starting line for the 600-mile pipeline, would leak methane, a potent greenhouse gas. And the pipeline itself would eventually leak methane as well.

Now in the case of a different pipeline — Southeast Markets — a federal appeals court in the District of Columbia has ruled 2-1 that federal regulators inadequately considered climate change and greenhouse gases in approving the project. The Hill reported the story this morning.

The ruling sets a legal precedent should the Federal Energy Regulatory Commission approve the Atlantic Coast Pipeline. If FERC does — a decision is due Oct. 19 — then it’s almost assured that environmental groups will sue.

The Southeast Markets pipeline is owned by three companies: TransCo, which already operates a pipeline that runs through North Carolina; Sabal Trail Transmission, and Florida Southeast Connection. The 688-mile pipeline would run through Alabama and Georgia before ending in Florida, where it would fuel existing and planned power plants. (This scenario is similar to the ACP, which would bring gas to Virginia and North Carolina to fuel Duke Energy’s and Dominion Energy’s facilities.)

The Sierra Club sued FERC following its 2016 approval of Southeast project. The court denied all of the Sierra Club’s objections, except the one about greenhouse gases.

Judge Thomas Griffith, who was nominated to the court by President George W. Bush, wrote the opinion. From The Hill:

“As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate,” Griffith said.

However, the court’s decision doesn’t kill the pipeline. The project returns to FERC, which is required to complete the necessary greenhouse gas analysis.

 

FERC Pipeline Appeals by LisaSorg on Scribd

Courts & the Law, News

In midst of merit selection talk, snapshot of demographic data shows NC judges are overwhelmingly white

Senate President Pro Tem Phil Berger’s chief of staff, Jim Blaine, presented some district court judges last week with a potential merit selection plan.

The biggest concern raised at the board of governor’s Friday meeting for the NC Association of District Court Judges was what impact such a plan would have on racial diversity on the bench.

Research on judicial selection systems and diversity shows that appointive systems fare no worse than elective ones — “they have both failed to produce judiciaries that reflect the populations they serve,” according to the Brennan Center for Justice.

Some district court judges expressed concern at Friday’s meeting not that minorities wouldn’t be qualified through a merit selection process, but that they likely wouldn’t have the same contacts for recruitment as white judicial candidates.

The Brennan Center wrote in a report that to have any claim to legitimacy, a 21st century method of judicial selection must be more effective in delivering a judiciary that reflects diverse communities.

“Reformers should explore ways to bring a diverse array of stakeholders into the selection process,” the report states. “It is necessary that the process be inclusive: The courts are too important to be left only to lawyers and a small group of interested parties.”

Other research on the subject confirms that the merit selection processes impact on racial diversity depends on nominating commissions’ diversity and governors’ willingness to appoint minorities.

The overall reaction North Carolina judges have to a potential merit selection process is not yet known, as consideration of such a plan has still not been publicly discussed by legislators. State Supreme Court Justice Mark Martin announced earlier this summer that he would be in support of merit selection.

Either way, current data from the Administrative Office of the Courts (AOC) shows that the makeup of the state’s bench does not represent the diverse communities living in North Carolina. Here is a snapshot of the demographic makeup of the state’s judges:

Of North Carolina’s 403 judges, 78 percent are white, according to data from the AOC. To compare, only 64 percent of North Carolina’s population is white.

Side note: If that percentage sounds familiar to you, it’s because the NC Justice Center’s Budget and Tax Center recently found that 78 percent of the General Assembly is also white.

North Carolina’s judges are made up of 19 percent Black or African American individuals. The state’s Black or African American population is 22 percent.

The diversity statistics drop significantly from there. Hispanic or Latino judges only make up .5 percent of the state’s bench, compared to 9 percent of the state’s overall population. American Indian or Alaskan native judges make up 1 percent of the state’s bench, compared to about 2 percent of the state’s population.

There is only one Asian judge, which makes up .2 percent of the bench, compared to North Carolina’s Asian population at 3 percent.

The population data is based on the 2015 U.S. Census data and the percentages used were rounded up to the nearest whole number.