Commentary, Defending Democracy, Legislature, News

The Week’s Top Stories on Policy Watch

1. Torrent of constitutional amendments provide exclamation points on a dreadful legislative session

A short-timer. In the military (and many civilian workplaces too) a short-timer is someone who is nearing the end of his or her term of service. Often, the term is used pejoratively to describe individuals who shirk new or difficult tasks as they cruise toward the exit door.

In the political realm, however, there are occasions in which short-timers pursue an opposite tack. Sometimes, when faced with the prospect of defeat in an upcoming election or, at least, a significant loss of power or status, short-timer politicians aim to enact as many new law and policy changes as they possibly can in the limited time they have remaining.

As the 2018 state legislative session careens this week toward what looks to be a wild and woolly conclusion, it’s hard not to see this latter scenario at work in Raleigh.

Simply put, if the predictions of most pollsters and pundits come true this fall, it’s extremely likely that Republicans will lose their supermajority control of the General Assembly in at least one, and quite possibly both, houses. If this happens, of course, their power to override gubernatorial vetoes and amend the constitution (both of which require 3/5 votes) will be dramatically reduced, along with their power to enact laws opposed by Democrats.[Read more…]

2. Voter ID amendment headed to ballot in November

Bonus reads:
* General Assembly passes two fixes to new early voting law

* Bad for North Carolina’s bottom line

3. Federal court hears challenge to HB2 successor law. Plaintiff: “We deserve safety”

4. PW exclusive: 25 years before SBI investigation, Duplin County was warned about Billy Houston’s consulting work

5. Federal authorities have yet to answer if families separated at border are in NC

6. Legislators wallow in special interest override of governor’s veto

This week’s editorial cartoon:

agriculture, Courts & the Law, Environment, Legislature

Shielding Murphy-Brown from nuisance lawsuits sparks a fracas in the streets, a battle in the courts and a struggle in the legislature

The band was in the middle of its set of oldies and country tunes when a bystander in the crowd of 500 people muttered, “Uh-oh. This could be trouble.”

Several husky men had gathered in front of the bandstand on the Bicentennial Mall in Raleigh yesterday afternoon, where farmers, their families, state officials including Agriculture Commissioner Steve Troxler, and Smithfield Foods employees, had assembled for a rally. The men brandished preprinted signs that read “Stand up for NC Farm Families” and “NC Farms can feed stupid. NC Farms can’t fix stupid.”

They flanked another slighter man, whose hand-drawn sign defended migrant farmworkers, as well as neighbors of industrialized hog farms, many of whom have sued Smithfield over the stench, flies, buzzards and truck noise from these enormous operations.

“Your God is watching,” the sign read.

There was a scuffle, with hollering, shoving and pointing. A woman sandwiched herself between two men, trying to defuse the fight. The crowd jeered as a plainclothes police officer, accompanied by another officer in uniform, led the man with the hand-drawn sign, away.

Behind the stage, as the man recorded the interaction, police told him that he could not disrupt a gathering that had received a permit.

“I’m speaking out for the people of eastern North Carolina who have hog shit sprayed on their houses,” he yelled.

The rally occurred on the same day of Gov. Roy Cooper’s expected—and later delivered — veto of Senate Bill  711, the NC Farm Act, as well as the closing arguments in the second of more than a dozen nuisance suits filed in federal court. The common thread in all three events – the rally, the nuisance litigation and the bill – is Murphy-Brown/Smithfield Foods.

It is not an exaggeration to say that the world’s largest pork producer, and its lobbying arm, the NC Pork Council, are the bullies on the block. As has played out in the legislature and in court, it’s become apparent that they use legal maneuvers, a sophisticated public relations machine, political influence and occasionally, even intimidation, to maintain their hold over North Carolina.

In addition to their powerful greenwashing machine, both entities have wielded their considerable influence over the sponsors of Senate Bill 711, including Sen. Brent Jackson. Jackson openly acknowledged on the Senate floor and in committees that he filed the legislation explicitly in response to Smithfield/Murphy-Brown losing the first nuisance suit in federal court.

Through a variety of legal barriers, the NC Farm Act would all but eliminate the right of neighbors to sue Murphy-Brown for nuisance. The Farm Act’s purpose is at best to deter, and at worst, to punish anyone who dares to confront the company. The bill could be up for an override vote as early as Wednesday.

While Murphy-Brown has framed the nuisance suit issue as an attack against small farmers – thus the reason for the rally – the suits are not against the farmers. They are against Murphy-Brown.

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agriculture, Courts & the Law, Defending Democracy, Education, Legislature, News, public health

The week’s Top Five on Policy Watch

1. A moment of extreme danger for NC public schools

There have been a lot of regressive education policies that have emanated from the North Carolina General Assembly in recent decades. Even prior to the Republican takeover that commenced in 2011, many Democratic leaders had already embraced the flawed conservative idea that our schools and students were struggling in many places because they were too “soft” and lacked sufficient “competition.” Hence, the early-century moves to introduce charter schools, dramatically expand the number of high-stakes, standardized tests and limit so-called “social promotions.”

In the last seven-plus years of GOP rule, the relative trickle of conservative education schemes has turned into a flood. Lawmakers have slashed funding, dramatically expanded charters (including for-profit, virtual charters), introduced private school vouchers, “education savings accounts,” “performance-based pay,” and state-initiated conversions of struggling schools to charter schools, and talked openly and repeatedly of privatizing what has long been understood to be a core function of government.

As unhelpful as each of these developments has been, however, they may well end up paling in comparison to the new and dangerous two-part change that’s currently making its way into law during the current legislative session.

At issue is the enormously controversial and dangerous plan to fundamentally alter the way North Carolina funds public schools by allowing individual cities to get into the business of running and funding public schools. Under the plan approved by the Senate last week, four wealthy suburbs of Charlotte that are angry with the administration of the county school system would be granted authority to fund their own charter schools and give priority admission to their towns’ students.

The plan is so radical and potentially game-changing that it actually drew negative votes from five Senate Republicans last week – something that almost never happens in that intensely partisan body – and is now attracting national attention. [Read more…]

2. In surprise revision to school safety bill, Senate Republicans seek insurance overhaul that may threaten NC’s Affordable Care Act marketplace

3. State lawmakers moving suddenly and swiftly to shut down nuisance suits against industrial hog farms

4. “Piecemeal” judicial redistricting: Lawmakers pushing a trio of bills that would impact a third of state’s residents

5. Amid anti-LGBTQ violence, NC Democrats seek expansion of state hate crimes law

Environment, Governor Roy Cooper, Legislature

State budget: DEQ still snubbed, plus Jordan Lake rules delayed again and an odd line item for Charlotte

The state budget: Stingy (again) toward DEQ (Creative Commons)

The state budget, having secretly curdled inside Republican bill writers for several weeks, was finally served to the public last night just before 9 p.m. At 748 pages long — including the conference report-– and weighing more than a pound, the financial blueprint for the next fiscal year spoils most hopes of  environmental protection for North Carolinians.

Republicans tweaked the GenX portion of the bill, which had already been divulged in the Water Safety Act. But the the minor tinkering did nothing to address perennial underfunding of the Department of Environmental Quality. Conservative lawmakers still snubbed the agency, appropriating $2.3 million for long overdue water and permitting projects. Lest that sound like a significant figure, over the past seven years, lawmakers have cut DEQ’s budget so deeply that $2.3 million is the equivalent of finding $20 in a winter coat pocket. Nice to have, but it won’t go far.

This section of the bill does remove the unfunded mandate lawmakers had saddled DEQ with: to develop a monitoring, remediation and corrective action plan for fluorinated compounds in public and private water supplies. That project — on its face, prudent and essential — disappeared because lawmakers refused to fund it.

Instead, the NC Collaboratory, a think tank headquartered at UNC Chapel Hill, received nearly three times that amount, raking in $5 million to essentially do what DEQ is statutorily charged with doing to rein in emerging contaminants — but without the regulatory authority. The Collaboratory, run by rainmakers Brad Ives, a former assistant secretary for DENR (now DEQ), and Jeffrey Warren, the former research director for Sen. Phil Berger, did take a “hit” in that its original appropriation in the Water Safety Act was $8 million. (The Collaboratory got another $1 million to analyze water quality issues in the Haw River and to continue its analysis in Jordan Lake.)

The GenX part of the Water Safety Act, as Policy Watch reported last week, contains several legal and constitutional pitfalls regarding the governor’s power that the budget only partially addresses. The Environmental Management Commission is designated as the rulemaking authority, wise, because that’s the EMC’s role. Several procedural changes attempt to circumvent the potential for a prolonged contested case appeal, should Chemours disagree with the governor’s shut down of its facility.

The bill does try to confront the serious legal chain of custody issues that outsourcing data collection and analysis to the university system presents, but it’s hardly foolproof. Somewhere, Chemours lawyers are lighting cigars.

Read more

Environment, Governor Roy Cooper, Legislature

Analysis: Water Safety Act constitutionally suspect, could slow down enforcement, clean up

Rep. Ted Davis Jr., a New Hanover County Republican (Photo: NCGA)

It’s curious how two legislators, who, in their day jobs are attorneys, have co-sponsored bills that leak state and federal law like a sieve.

The Water Safety Act — Senate Bill 724 and  its identical companion legislation House Bill 972 — pretend to strengthen regulations and enforcement against Chemours, but in reality, make the state vulnerable to legal action by the company and do little to clean up GenX contamination.

The legislation could be folded into a larger budget bill, making it all but impossible to defeat.

Primary sponsors of the House version are Republicans Ted Davis Jr. (the lawyer of the bunch), Holly Grange, Frank Iler and Bill Brisson. They all are members of the House Select Committee on River Quality.

The Senate counterpart is co-sponsored by Republicans Mike Lee, an attorney, plus Bill Rabon and Wesley Meredith.

The Department of Environmental Quality and Gov. Cooper both issued statements and analysis critical of the bill today. But environmental lawyers, policy analysts and environmental groups, have also chimed in. They have noted the bills’ serious legal defects that could hamper cleanups, run afoul of current state and federal laws, and deprive Chemours and other polluters their constitutional right to due process.

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

The bills makes DEQ’s actions dependent on the governor, who is authorized to issue an administrative order to “require a facility to cease all operations that result in the production of a pollutant.” (In the bill, “pollutant” is not defined.)

“On its face, a governor’s order sounds like a quicker and more direct way to stop the release of these pollutants,” wrote former Assistant DEQ Secretary Robin Smith, now a lawyer and consultant in private practice, on her environmental blog. “In reality, any order could be appealed in an administrative hearing and the administrative law judge has the power to prevent the order from going into effect until there has been a final decision on the appeal.”

#GenX bill is divorced from reality Click To Tweet

Those appeals can take months; meanwhile, contamination could continue unabated.

On the other hand, DEQ can go directly (and quickly) to court for an injunction, which the agency has already done in Bladen County to stop Chemours from discharging GenX offsite.

While the legislation appears to target Chemours and its “discharge” of GenX and fluorinated compounds, DEQ pointed out that “discharges,” as defined in state law, exclude air emissions. GenX-related compounds are being emitted into the air from the Chemours plant and contaminating surface water, soil, groundwater and drinking water — topics also extensively discussed in the House River Quality Committee.

In addition, the bill sponsors seemed to go out of their way not to fund DEQ, other than $2.3 million worth of breadcrumbs. “While providing extravagant funding to those other entities, the bill fails to make a long-term investment in DEQ’s regulatory programs that have been subject to budget cuts since 2011,” DEQ said in its analysis.

By comparison, the bill serves as an ATM for other entities: the Cape Fear Public Utility Authority ($450,000), local governments ($2 million), the state health department ($530,000), and the NC Collaboratory at UNC ($8 million), whose research director is Jeffrey Warren, former science advisor to Sen. Phil Berger.

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