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.”

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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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Environment

SELC files complaint vs US Fish and Wildlife over 540 toll road threat to endangered mussels

The Yellow Lance Mussel, a federally threatened species, could be eradicated by the construction of the 540 toll road. (US Fish and Wildlife Service)

Tiny and unobtrusive, the endangered Dwarf Wedgemussel and the threatened Yellow Lance Mussel are minding their own business in Swift Creek in southern Wake County. They’re doing what freshwater mussels do: The larvae, having hitchhiked a ways on the back of fish like the johnny darter or a mottled sulpin, hatched just last month. Free of their kids, the adults are hanging out in the sand bottom, nibbling on algae.

These two mussels, though, live in the path of the proposed 540 toll road. And now they’re at the center of a federal complaint filed by the Southern Environmental Law Center.

Filed in US District Court for the Eastern District of North Carolina, the complaint alleges the US Fish and Wildlife Service committed “arbitrary and capricious”errors when it approved the biological opinion for the 540 toll road. The agency determined that direct effects of the project pose “no jeopardy” to the mussels within a quarter mile of their known occupied habitat in Swift and Middle creeks.

“USFWS has failed in every way to analyze impacts to the endangered mussel species and to ensure that measures are in place to prevent extinction, minimize loss and put the species on the road to recovery,” the complaint reads.

USFWS did not respond to an email request seeking comment.

A biological opinion is the scientific lynchpin for evaluating a project’s potential environmental damage. The harm can be direct — construction that erodes a stream bank, for example — or indirect — stormwater runoff, sedimentation and increased development that usually accompanies such road projects.

Swift Creek near NC 50 in southern Wake County

The opinion is also legally required to consider a project’s cumulative impacts in an “action area.” These cumulative impacts could include the construction of the Atlantic Coast Pipeline, which will pass through Johnston County, as will part of the toll road.

The federal agency’s errors could permanently harm, or even wipe out, the mussels, SELC says. Federal law recognizes that construction can unavoidably kill some members of endangered or threatened species. That damage is limited though, in an “incidental take” permit, which is supposed to specify “whenever possible” the number of animals, birds or aquatic organisms that can be killed.

These “incidental takings,” as they’re known under the Endangered Species Act, would cause the mussels to go virtually extinct in North Carolina.

But, as SELC attorney Kym Hunter pointed out, USFWS has authorized the state to essentially kill all of the mussels within 50-plus miles of their habitat. USFWS has said it’s too difficult to accurately count the mussels because they are “small and cryptic in nature.” In other words, the agency won’t know how many will be destroyed because it doesn’t know how many exist: Out of sight, out of mind.

There are situations in which counting endangered or threatened species is very difficult — their low numbers are precisely the reason for their status. In those cases, USFWS can assign a “surrogate” method of estimating the population. But the law requires USFWS to make a scientific case for the alternative, which, Hunter said, it has not done.

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Education, News

New Census figures: Minus charter spending, N.C.’s education spending ranks near the bottom of the nation

North Carolina education spending per-student ranks near the bottom of the nation, according to new U.S. Census figures released this week. 

The data, which do not factor in North Carolina’s growing spending on charters, placed the state at 45th in the nation, not counting Washington, D.C.

Total spending per student, about $8,792, lags the U.S. average of $11,762, according to the Census charts.

The funding levels were for the 2016 fiscal year. Census officials noted they did not include charter holders who were not governmental entities.

North Carolina charters are approved by the State Board of Education but run by private, non-profits. Of course, charter spending is of import in this discussion. Since North Carolina lawmakers lifted the 100-charter cap in 2011, the charter sector has risen to include 173 schools.

A report this year from the National Education Association tallied up the state’s per-pupil spending, including charter funding, to $9,528 per student. According to the NEA, that ranks 39th in the nation, trailing the national average by more than $2,300.

The new Census data arrive about a week after 20,000 to 30,000 teachers and education advocates swarmed Raleigh to rally before the N.C. General Assembly. Among their grievances, teachers complained of insufficient school spending, poor pay, cuts to their retirement benefits, over-testing, and hostility from state leaders.

See below for the state rankings:

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Courts & the Law, Defending Democracy, News

Committee to consider ‘various changes related to election laws’

UPDATE: This committee meeting was cancelled at the last minute.

Rumors about a new voter identification measure have been swirling around the legislature for some time, and if it comes out at any point this session, it will likely be today.

House members on the Elections and Ethics Law Committee are set to meet today at 10:15 a.m. in room 643 of the Legislative Office Building to vote on an elections measure that will replace Senate Bill 486, the Uniform Voting Hours Act.

A proposed committee substitute, titled “An act to make various changes related to election laws” was unveiled late Tuesday night but has not yet been made available online. Committee members were directed in an email to submit any potential amendments to the PCS by the end of business yesterday.

The PCS, posted below, seeks to add several election security measures proposed by the State Board of Elections and Ethics Enforcement, including criminal record checks for current, temporary and prospective employees.

The bill prohibits losing primary election candidates from being on the general election ballot as a candidate for a new political party.

It also sets out some instruction for judicial elections, since the judicial primaries were cancelled this year. Voters will read the following on the ballot before seeing a list of judicial candidates: “No primaries for judicial office were held in 2018. The information listed by each of the following candidates’ names indicates only the candidates’ party affiliation or unaffiliated status on their voter registration at the time they filed to run for office.”

You can see other changes below:

The new SB486 by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Winning and losing: a tale of two campaign finance reports

Wayne Sasser

Rep. Justin Burr (R-Stanly, Montgomery) may have had more money on hand during the first financial quarter this year, but his primary election challenger, Wayne Sasser, spent more and received more from individuals in his winning campaign for a legislative seat.

Campaign finance reports for the first quarter of this year were released earlier this month by the State Board of Elections and Ethics Enforcement. Burr started with $22,591.88 and Sasser with $6,909.70, according to each of their finance filings.

The losing incumbent received $49,462.18 in contributions; $23,750 came from political committees, $25,192.18 came from individuals and $520 was reported as aggregated contributions from individuals.

Justin Burr

His biggest individual donor was an optometrist named Stephen Bolick from Raleigh, who made an in-kind donation of $1,647.18 for the cost of a fundraiser dinner. North Carolina Health Care Facilities Association PAC was Burr’s biggest political donation at $5,000.

Sasser received $75,137.91 in contributions, although $20,000 was recorded as a loan from himself. Individuals donated $46,267.81 to his campaign and aggregated individual contributions were $1,960.40. He did not receive any donations from political committees.

His biggest contributions were from Evon Jordan and Jerry Jordan, both from Oakboro, of Jordan Trucking, according to the financial paperwork.

Sasser spent $54,171.40 compared to Burr’s $35,077.19 during the first quarter, according to their filings. Both of their biggest expenditures were mailers — Sasser spent just over $37,000 and Burr spent just over $27,600.