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The ACP Was Canceled but We Still Lost Our Land
This guest blog was written by Bill and Lynn Limpert. Bill volunteers with POWHR. There’s nothing like winning a pipeline fight after years of community advocacy. Defeating the Atlantic Coast Pipeline (ACP) was a win for our people and planet. Hundreds of thousands of people can rest easy knowing that their lives, homes, land, and water won’t be destroyed or severely damaged by that unnecessary pipeline. Nevertheless, a lot of irreparable harm can be inflicted during a fossil fuel pipeline fight. Just because a pipeline is eventually canceled, doesn’t stop it from bulldozing through precious land and water and exhausting…
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Democrats’ climate hopes are riding on a new environmental justice bill
By: Yvette Cabrera, Grist February 16, 2022 With the Build Back Better Act frozen in Congress, Democrats now see their best hope in tackling environmental disparities lies in the Environmental Justice for All Act. On Tuesday, Democratic U.S. Representative Raúl M. Grijalva of Arizona pushed the bill forward in a hearing held by the House Committee on Natural Resources, which he chairs. In more than three hours of testimony, Republicans on the committee pushed back on the bill, groundbreaking legislation that aims to address environmental disparities in vulnerable communities across the country. Grijalva and his co-author, Representative A. Donald McEachin of Virginia, drafted the bill to prioritize environmental justice in federal policy and reintroduced the Act in the House of Representatives last March. The bill was created with the help of an extensive network of stakeholders — including representatives from grassroots organizations that focus on everything from climate justice to industrial pollution in communities that have experienced the health effects of toxic emissions and industrial pollution for decades. Despite Republican protests that the bill will harm communities reliant on the oil and gas industry for work and taxes levied on these industries to pay for municipal services, Grijalva told Grist it’s time for action to protect the health and well-being of these communities. He said the plan is to move forward in what’s known as the mark up phase — receiving input from congressional members, including amendments — while simultaneously receiving feedback from affected communities. “The input from my Republican colleagues to do nothing is not going to happen,” said Grijalva, noting that they have a choice to either strengthen the bill or kill it. His hope is that Republicans collaborate to strengthen the bill given the lives at stake from ongoing pollution. “It’s an issue that is not going to go away, it’s an issue that potentially affects 40 million people in this country directly,” he said. During the hearing, Republican Rep. Pete Stauber of Minnesota criticized the act for creating more red tape, opportunities for “radical special interest groups” to file more lawsuits, and for requiring federal agencies to develop more reports and studies. His concern, he said, is that all of this will keep affected workers in these industries on the sidelines. “When it claims to speak to so-called environmental justice, it plainly misses the mark,” said Stauber during the hearing. It’s those studies and the accompanying data that Laura Cortez, a co-executive director with East Yard Communities for Environmental Justice in Los Angeles says are necessary to ensure that the cumulative impacts of pollution in disadvantaged communities are considered before more polluting industries are allowed into communities like hers. “There is no single, evil villain polluter in EJ communities. What I see as one of the largest issues is that municipalities and agencies currently treat polluters on a case-by-case basis without assessing cumulative impacts,” Cortez told the committee on Tuesday. Democratic U.S. Representative Raúl M. Grijalva of Arizona is a co-author of the Environmental Justice for All Act. Caroline Brehman / CQ-Roll Call, Inc via Getty Images A life-long resident of Bell Gardens, she noted that she grew up next to railroad tracks with trains that rumbled past at 3 a.m., within five minutes of an oil refinery, a block from warehouses, and attended school next to the 710 freeway, which she said sees 40,000 to 60,000 truck trips daily. Cortez’ community has worked to address soil, air and water quality issues throughout the region, and has found success when partnering with scholars that can quantify the effects of cumulative pollution. But a comprehensive federal approach to examining these impacts is needed, she said. Grijalva pushed back on his Republican colleague’s claims that the Environmental Justice for All Act jeopardizes economic security, specifically jobs, noting that the critics presented no quantitative facts to support their arguments. On the other hand, he noted, there is extensive research showing the disproportionate effects of environmental contamination — from petrochemical facilities, landfills, waste incinerators, oil refineries, smelters, and freeways — on low-income residents and communities of color. “That’s just the reality and it’s far from coincidence, and I hope my Republican colleagues are not trying to rewrite history,” said Grijalva. “We’re trying to correct history and make sure it doesn’t happen again, and that’s what the bill is about.” The Environmental Justice for All Act aims to: Amend the Civil Rights Act to allow private citizens and organizations that experience discrimination (based on race or national origin) to seek legal remedies when a program, policy, or practice causes a disparate impact. Provide $75 million annually for research and program development grants to reduce health disparities and improve public health in disadvantaged communities. Levy new fees on oil, gas, and coal companies to create a Federal Energy Transition Economic Development Assistance Fund, which would support workers and communities transitioning away from greenhouse gas-dependent jobs. Require federal agencies to consider health effects that might accumulate over time when making permitting decisions under the federal Clean Air and Clean Water acts. While the Biden administration has made some strides over the last year to address the concerns of environmental justice communities through executive orders and via EPA funding to prioritize long-standing contamination in vulnerable communities, legislation is critical to ensure that these priorities are codified into law, said Grijalva. Read the article on Grist
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What the Winston-Salem fire says about environmental justice in North Carolina
By: Adam Wagner, News & ObserverFebruary 7, 2022 Ruby Gordon was already in bed last Monday night when she got the first call notifying her to evacuate her home in northern Winston-Salem. The call was related to a fire at the Winston Weaver fertilizer facility on Cherry Street, about three-quarters of a mile away. Gordon had driven by the building thousands of times. Sometimes she would see a truck coming or going, but, she said, “I didn’t know what was in that building, to be honest…
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Court Stops MVP From Tearing Through Jefferson National Forest
By: Protect Our Water, Heritage, Rights (POWHR) Richmond, VA – Today, the United States Court of Appeals for the Fourth Circuit issued a decision that vacates prior decisions made by the US Forest Service and the Bureau of Land Management. Today’s decision rules that the Mountain Valley Pipeline cannot cross the Jefferson National Forest in Montgomery and Giles County, Virginia and Monroe County, West Virginia. The court concluded that the Forest Service and the Bureau of Land Management inadequately considered MVP’s sedimentation and erosion impacts, prematurely allowed MVP to use the conventional bore method for stream crossings, and failed to comply with the Forest Service’s 2012 Planning Rule. In response, Russell Chisholm, Co-Chair of the Protect Our Water, Heritage, Rights (POWHR) Coalition, said: “This decision confirms what those of us on the ground have been saying for years: MVP has caused irreparable harm to our land and must be stopped from imposing further destruction. This is a big hit in the impending downfall of the Mountain Valley Pipeline project. This decision will lead to significant delays in the construction of MVP during which our movement will ensure that this pipeline is stopped. If MVP is unfit for the protected Jefferson National Forest, it is unfit for our waters, our land, and our communities, full stop.” Read the press release on POWHR
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EPA launches civil rights inquiry into DEQ’s permitting of biogas systems on hog farms
By: Lisa Sorg, NC Policy Watch January 14, 2022 The Environmental Protection Agency is opening an investigation into whether state regulators violated civil rights law when last spring, they granted permits to four industrialized hog farms that are installing anaerobic digesters to produce biogas for renewable energy. The investigation is in response to a complaint against the NC Department of Environmental Quality filed by the Southern Environmental Law Center, which is representing several community groups. SELC alleges that when DEQ granted the general permits to the Smithfield-owned farms, the agency failed to protect the surrounding communities from air and water pollution. A disproportionate share of the hundreds of families who live around the hog operations in Duplin and Sampson County are Black and Latino. Under a federal civil rights law, known as Title VI, entities that receive federal funds can’t from discriminate on the basis of race, color, or national origin —intentionally or unintentionally. “We are excited that the EPA decided to investigate this complaint. As a ‘watch dog’ for those most negatively impacted by the hog industry, we consider the investigation of this complaint as a step in the right direction. Nevertheless, we also understand that there is much more work to be done,” said Robert Moore, president of the Duplin County Chapter of the North Carolina NAACP, in a prepared statement. The SELC complaint met the administrative requirements for the EPA to proceed; next the agency will determine whether the complaint has merit. DEQ has 30 days to respond to the EPA. If the EPA finds the underlying issues of the complaint are valid, the case would initially go to mediation, which is legally required. Parts of the SELC complaint to the EPA are similar to one it filed to the state Administrative Office of the Courts. Earlier this week, Administrative Law Judge Donald van der Vaart ruled that DEQ legally permitted industrialized hog farms to install the digesters on their waste lagoons. Van der Vaart previously served as DEQ secretary under then-Gov. Pat McCrory, and was known for his anti-regulatory stances. The SELC’s state filing did not address civil rights laws. This is the EPA’s third civil rights inquiry into DEQ’s handling of industrialized hog farms since 2014. That year, under DEQ Secretary John Skvarla, the Waterkeeper Alliance, NC Environmental Justice Network and REACH (Rural Empowerment Association for Community Help) filed a complaint alleging that the state’s general permitting process for swine farms disproportionately burdens communities of color. The EPA ordered the parties into mediation, but in 2016 — under van der Vaart’s tenure — those talks broke down after DEQ brought members of the N.C. Pork Council and the Pork Producers to a confidential mediation meeting. In turn, Elizabeth Haddix and Mark Dorosin, who at the time worked for the UNC Center for Civil Rights, filed a retaliation complaint against the agency. In 2018, under Secretary Michael Regan, DEQ reached a settlement with the UNC Center for Civil Rights and its clients. The key points included air and surface water monitoring, greater public participation and transparency, and new complaint and violation point systems. Regan is now the EPA administrator. Read the article on NC Policy Watch
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Biden Administration Announces Crackdown on Toxic Coal Ash Pollution
By: Earth Justice, January 11 For the first time, the federal government is enforcing rules that require the coal industry to clean up toxic coal ash waste. This pollution can leak into groundwater and drinking water sources. Earthjustice was deeply involved in passing the original coal ash rules as part of our mission to secure clean air and drinking water for all. Since then, we've been fighting in court to make sure the government upholds them. Coal ash is the leading source of water contamination in the U.S. Coal ash contains a long list of toxic chemicals, including arsenic, radium, and other carcinogens, as well as several metals that can impair children’s developing brains. There are 738 regulated coal ash dump sites in the U.S. Coal ash ponds hold enough ash to fill train cars that circle the earth more than 5 times over. According to analysis of the industry’s own test results, 91 percent of coal plants severely polluted the underlying groundwater to levels that exceed federal safe standards for drinking water. Coal plants are disproportionately located in communities where people suffer higher incidences of cancer, asthma and more. The EPA just told several coal plants they must follow federal rules about how coal ash is managed. On January 11 the EPA responded to nine power plants that applied to delay closure of their toxic ash ponds. The EPA did not grant any of the nine applications: it rejected three outright, found four incomplete and one ineligible, and indicated it would only conditionally approve one application after compliance violations were resolved. This is the first time the EPA is interpreting and enforcing the federal government’s rules on coal ash since those rules were passed in 2015. The Trump administration tried to roll back the rules, even after a federal court sided with Earthjustice and ordered the government to strengthen coal ash regulations. Most coal facilities have taken measures to hide toxic coal ash contamination and leave their plants in a condition that will permanently plague local communities with hazardous chemicals. The EPA needs to reverse this course and hold utilities responsible for cleanup and safe closure of toxic ash ponds. Today marks the first step of this process. The EPA’s decisions will have wide application and set a precedent for the hundreds of U.S. coal plants and the coal ash ponds and landfills they manage. [View a map of coal plants contaminating groundwater] The EPA’s decisions establish that: Coal ash ponds can’t be closed with ash sitting IN groundwater. Across the nation, at least 150 ash ponds are within five feet of groundwater, with a lot of those sitting in direct contact with the water. Leaving ponds of toxic waste in contact with groundwater creates never-ending leaching of dangerous chemicals like arsenic, cobalt, cadmium, lead and radium, which can cause cancer and neurological harm. Coal plant operators must clean up groundwater contaminated by coal ash and cannot get away with “do-nothing” solutions that simply wait for the toxic metals to be diluted or flow into the nearest drinking water well or surface water. Coal plant operators must openly and honestly determine the extent of water contamination caused by coal ash at their plants and can no longer hide behind intentionally false sampling and analysis that conceals the true extent of the poisoned groundwater. Read the article on Earth Justice
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PFAS, climate change, mining and hazardous waste: 2022 will be another critical year for the environment in North Carolina
By: Lisa Sorg, NC Policy Watch January 3, 2022 On the first day of 2022, the neighbors’ air conditioners were running. The temperature at Raleigh-Durham International Airport hit 78 degrees, a record for the date; at 1:51 p.m. the high humidity even produced a heat index of 79. A heat index. In January. This was a redux of December 2021, the third-warmest December at RDU and Fayetteville since records were kept, according to the National Weather Service, and the second-warmest at the Greensboro station. While not every meteorological blip can be attributed to climate change, the patterns are clear and troubling: The weather is warmer and wilder, and more often destructive. Late last year, a drought in North Carolina contributed to dozens of wildfires, including a 1,000-acre blaze at Pilot Mountain. The drought drags on: As of Dec. 28, 2021, all 100 counties in the state were in some stage of drought, half of them classified as severe. (Today’s torrential rains will likely change the drought status for several counties; a new report comes out every Wednesday.) Climate change and its effects will continue to be the most pressing environmental issue of 2022, not just in North Carolina, but also worldwide. How we tackle the existential threat to humanity depends on overcoming political resistance and inertia. The state’s Clean Energy Plan, while ambitious, still falls short. Turning out the lights at night in state buildings, while admirable, fails to hold corporations accountable for their substantial role in the crisis. The plan focuses on reducing and eliminating carbon emissions from coal-fired power plants — laudable — but it doesn’t fully address methane emissions from natural gas and biogas. In addition to climate change, North Carolina faces several environmental crises: Perfluorinated compounds in drinking water. The proliferation of the mining industry, subject to anemic regulations rivaled only by those governing the poultry sector, which have virtually none. Hazardous waste, air pollution, environmental justice. All of it, and all but ignored by state lawmakers. That’s where regular North Carolinians come in: Monitoring, reporting, complaining, protecting, advocating for themselves their neighborhoods, their futures. Here are four major environmental issues to watch in 2022. As the year progresses, the list will certainly grow. PFAS, GenX, Chemours and the snail-like pace toward regulation This spring the EPA plans to announce a new — and much more stringent — health advisory goal for GenX, a type of PFAS, or perfluorinated/ poly-alkylfluorinated compound. That’s the good news. Chemours will likely be required to offer alternate water supplies to even more well owners whose drinking water the company contaminated. The bad news is a health advisory goal is not legally enforceable, and setting one — known as a maximum contaminant threshold — for GenX and two other types of PFAS will take several years. More bad news: There are 5,000-plus types of PFAS, and unless the EPA regulates them as a class, doing so individually will take, well we’ll all be pushing up daisies by the time that happens. On Dec. 28, the EPA announced it would grant a petition from six environmental groups in southeastern North Carolina, which had asked the agency to require toxicity testing of 54 types of PFAS. The EPA’s announcement, though, was a half-truth. The agency will require Chemours to test only nine PFAS; the toxicity of roughly two-dozen others will be extrapolated from existing studies. Nine additional PFAS could be studied in the future, and 15 did not meet the criteria, the EPA said. Environmental groups were outraged, noting that the agency’s proposal fell far short of the petition’s requests. Dana Sargent of Cape Fear River Watch posted on Twitter: “As the director of an environmental nonprofit who trusted the folks of this EPA to do the right thing, I am furious. As a poisoned community member grieving the loss of a firefighter brother whose cancer could be explained by this data, I am heartbroken.” In other Chemours news, ever recalcitrant, the company is taking the NC Department of Environmental Quality to court over a $300,000 fine the agency assessed the company over air pollution. The contested case hearing before an administrative law judge has not been scheduled. Fuel to the climate change fire: biogas, wood pellets Montauk Renewables representatives spoke to residents of Turkey, in Sampson County, about a proposed facility that would process hog waste and other organic matter, like saw grass, into beneficial products, allegedly without emitting air pollution or wastewater discharge. (Photo: Lisa Sorg) In the Sampson County town of Turkey, Montauk Renewable Energy plans to haul hog waste from area lagoons (likely in a vacuum truck to avoid potentially slickening Highway 24 with manure from semis) to a former furniture factory on the town’s west side. There tons of waste would be processed through a closed-loop system to turn manure into compost and other beneficial materials — allegedly without producing harmful emissions. At a public meeting last month, Joe Carroll and Martin Redeker, the latter of whom invented the technology, explained the process, and brought jars of compost and processed hog manure to prove the materials didn’t smell. (It didn’t.) The company has a small test site in Magnolia that turns hog waste energy into electricity that it then sells to the grid; Four County electric co-op has a substation next door. The Turkey site, if it receives all required permits, could still produce biogas, possibly to power the building. At this point, no major pipeline infrastructure is planned. Turkey residents are concerned about potential odor, flies and traffic, as well as the fact the town would be sandwiched between two hog waste/biogas facilities. A couple of miles east on Highway 24, Align RNG, a partnership between Smithfield Foods and Dominion Energy, will collect biogas from at last count, 15 (as yet mostly unidentified) hog farms outfitted with digesters on their lagoons. The gas from the lagoons will be sent through new pipelines in Sampson and Duplin counties to the Align RNG facility, and from there, injected into a conventional natural gas pipeline. Opponents of the Align RNG project point out that 1) it still puts the state on track to rely on natural gas infrastructure, and 2) solidifies the outdated system of disposing waste in lagoons. Leftover waste is still held in open pits that stink, and it is still sprayed on fields, which can harm water quality and contaminate drinking water wells. Enviva’s four wood pellet plants — in predominantly Black and Latinx communities in Hertford, Northampton, Sampson and Richmond counties — continue to burn North Carolina trees to burn for fuel in Europe. Not only does the wood pellet industry contribute to carbon emissions, the timbering for the fuel source removes vital natural flood protection. But Active Energy’s proposed wood pellet plant in Lumberton, in Robeson County, appears to be kaput. In May 2021 the company received a Notice of Violation from DEQ even before the plant operated; its engineers changed the production process without notifying DEQ, a process that would have increased harmful air emissions. Since then, Active Energy temporarily moved to Maine, where its CoalSwitch technology also failed. Shares of the company, traded on the London Stock Exchange, are down 54% since October; investors are griping about promises that have yet to come true. Meanwhile, Lumberton residents, many of them members of the Lumbee tribe, are relieved that their community won’t be burdened with more air pollution. Mining and mystery drilling Hundreds of people attended a public hearing in Gastonia, most of them opposed to a proposed lithium mine near Cherryville. (Photos: Lisa Sorg) One of the most-anticipated DEQ decisions for 2022 involves a proposed behemoth lithium mine near Cherryville, in Gaston County. At a public hearing in November, hundreds of residents turned out to oppose the 1,500-acre mine, fearing contamination of the groundwater and private drinking water wells. Piedmont Lithium, the company behind the mine, has contracted with Tesla to provide the essential element for electric car batteries. Unlike vehicles that run on fossil fuels, electric cars don’t emit pollutants from their tailpipes — pollutants that contribute to climate change. However, extractive industries, like mining, still exact an environmental toll. New technologies could provide companies with less damaging ways to get at the lithium, but miners must learn from their coal and petroleum counterparts, whose practices — mountaintop removal, oil spills — have destroyed neighborhoods and shorelines, harmed public health and decimated ecosystems. DEQ is expected to announce its decision before spring; Gaston County officials, though, will likely weigh in. And opponents can still delay the permit via the courts. Residents of Hamptonville, in Yadkin County, could know the outcome of the mystery drilling that’s been happening on 700 acres of farmland since last spring. Residents — 44 of them adjoining the land — are concerned drilling could threaten their drinking water wells. Jack Martin of Synergy Materials has refused to disclose what he’s found or even what he’s looking for, but told Policy Watch and neighbors that once his investigation is complete, possibly this month, he’ll host a public meeting to unveil his plan. Granite? Silica? Lithium? Fracking? The property is owned by former State Rep. Wilma Sherrill, but Synergy has an option to buy it. Shortly before the holiday break, DEQ announced it had granted a controversial mining permit to Carolina Sunrock for its 426-acre operation in Prospect Hill, in southeastern Caswell County. The mine, in the works since 2019, has divided the county: It was the subject of a zoning referendum, which narrowly failed; figured prominently in the 2020 county elections, resulting in a complaint by Bob Hall, former director of Democracy North Carolina, over allegations of illegal political advertising. In what appears to be an intimidation tactic, Carolina Sunrock sued 55 people over their objections to the mine and associated asphalt plants in Prospect Hill and the Black community of Anderson Township. Represented by Durham attorney Bill Brian, Carolina Sunrock even subpoenaed private emails from resident Leslie Winner, among those spearheading opposition to the mine. Residents have not decided whether to challenge the permit before an administrative law judge. The state Mining Act favors industry — Martin Marietta wrote the law — but it is possible to secure additional environmental protections. Snow Camp residents recently won concessions from DEQ and a different mining company in settlement that grew out of a contested case against the agency. And opponents of the Wake Stone quarry near Umstead State Park also scored a small victory when an administrative law judge ruled DEQ had erred in authorizing a buffer request for a bridge for their mining operation over the sensitive Crabtree Creek. Critical cleanups: progress or stalemate? The former ABC One-Hour Cleaners site in Jacksonville has been on the Superfund site for 33 years. Money from the federal infrastructure law will help pay for a cleanup. (File photo: Lisa Sorg) Huntersville is heading into Year 2 of the aftermath of the Colonial Pipeline disaster that spilled at least 1.3 million gallons of gasoline in a residential neighborhood, including the Oehler Nature Preserve. The cleanup is nowhere close to being finished, and will likely take at least a decade. The spill occurred on Aug. 14, 2020, when a portion of the pipeline failed. The extent of the environmental damage — especially to the groundwater — is still unknown. DEQ has cited Colonial for failing to provide a full accounting of the spill, the largest such onshore accident since at least 1991. Nor is it clear why PFAS was found in runoff at the spill site and in water containing fire suppressant, when that material was advertised as PFAS-free. In October, DEQ petitioned a Mecklenburg County Superior Court judge to force Colonial to provide this critical information, but the agency has yet to fine Colonial for its deficiencies. This could be the year. The Tarheel Army Missile Plant, 204 N. Graham-Hopedale Road, in East Burlington (Archival photo: DEQ) Two years for a cleanup seems short considering remediation of the former Tarheel Army Missile Plant in Burlington is in Year 30. Yes, the East Burlington neighborhood, which is predominantly Black and Latinx, has been waiting 30 years for a solution to the contamination at the 22-acre site. The U.S. Army, which is responsible for cleaning up the contamination in the groundwater, filed yet another environmental assessment to DEQ last year, but so far that has translated into no action. Meanwhile, groundwater tainted with cancer-causing solvents continues to seep beneath the neighborhood and into a nearby stream that eventually feeds the Haw River. Aboveground, property owner David Tsui is on the hook for containing and removing contamination in the dozen-plus buildings. DEQ documents show he plans to renovate the few uncontaminated buildings, one for office space and two others for storage. Those upgrades began last fall, but the contaminated buildings that border private homes are not on the renovation list. The neighborhood desperately needs answers, as well as indoor air testing to ensure hazardous vapors from the solvents have not entered private homes. 30 years is too long to wait; DEQ and the Army must ensure meaningful action occurs before Year 31. On a more hopeful note, the new federal infrastructure law is funding stalled cleanups beginning this year at 49 Superfund sites, including four in North Carolina. One of those, Policy Watch reported in February 2020, is ABC One-Hour Cleaners near Camp Lejeune. The former dry cleaners is now in Year 33 of being on the Superfund list, which contains some of the most toxic and intractably polluted areas in the country. But after $1 million in taxpayer money, the cleanup of solvents in the groundwater should be nearly finished. Instead, because of contractual disputes, recalcitrant business owners, broken equipment and even hurricane damage, the cleanup has failed. As a result, the contaminated plume has expanded and threatens Northeast Creek and the New River. The estimated cost of the new cleanup, which includes only soil, not groundwater, is $3.34 million. Once the system is built — about a two-month project — the EPA projects it will take two years to reach clean up goals for the soil. Three more Superfund projects will also receive funding: The 15-acre Hemphill Road TCE site in south Gastonia, went on the Superfund list in 2013 because the business had contaminated private drinking water wells with hazardous solvents. Those households have alternate water supplies now, but the groundwater contamination persists. In Yadkinville, the 80-acre Holcomb Creosote site has been on the Superfund list since 2012. The wood-treating business contaminated the soil, sediment, groundwater, surface water and on-site structures. Ram Leather Care in Charlotte, another dry cleaning and leather-restoration business, has been on the Superfund list since 2003. Although households were connected to the public water system in 2008, there is a risk that hazardous vapors from contaminated groundwater and soil have entered nearby buildings. Read the article on NC Policy Watch
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Court of Appeals rules NC lawmakers were within their authority to all but outlaw hog nuisance lawsuits
By: Lisa Sorg, NC Policy Watch December 21, 2021 A three-judge panel from the state Court of Appeals unanimously ruled against an environmental justice group today, deciding that North Carolina legislature had the authority to make it difficult, if not impossible, for people to sue hog farms for nuisance. The ruling affirmed a lower court’s decision. The amendments to the Farm Acts of 2017 and 2018 “are a valid exercise of legislative and the State’s police powers,” wrote Justice John Tyson. Nor are they “a special or private law, and do not deprive a prospective plaintiff of the right to a jury trial.” Judges Jefferson Griffin and Fred Gore concurred. Civil rights attorneys Burton Craige and Elizabeth Haddix represent the plaintiffs — REACH, a group of eastern North Carolina residents — in challenging the Farm Acts of 2017 and 2018 — House Bill 467 and Senate Bill 711, respectively. The defendants were State Rep. Tim Moore and State Sen. Phil Berger; the NC Farm Bureau had filed as an intervenor with the defense; the state Department of Agriculture had filed a friend-of-the-court brief in support of the defense. Lawmakers had passed both bills in direct response to federal nuisance lawsuits filed against Smithfield Foods by hundreds of neighbors of industrialized hog farms. In five of those federal cases, juries eventually awarded millions of dollars in damages to the neighbors. The remaining 20 or so cases were settled out of court. The litigation was filed before the Farm Acts were passed; now those types of lawsuits would unlikely be filed. The plaintiffs’ attorneys initially argued before Wake Superior Court that provisions in the acts deprived neighbors of agricultural and forestry operations fundamental property rights. In 2020, that court dismissed the plaintiffs’ constitutional challenges. The plaintiffs appealed, and earlier this month, their attorneys asked the appellate court to apply what’s known as a “means-ends” test to determine the constitutionality of the Farm Acts. Is the law necessary to accomplish the government’s goals? Is the law reasonable in its degree? And is the law enacted for a public purpose? Craige argued that the Farm Acts met none of those requirements. Under the Farm Act of 2018, neighbors can’t sue unless they do so within a year that the farm begins operating. Since all of North Carolina’s hog farms began operating before 1997, when a moratorium on new or expanded farms went into effect, it’s nearly impossible to sue for nuisance. Nor can plaintiffs recover punitive damages, which juries can award in cases of “willful or wanton conduct.” In four of the five federal cases, juries awarded plaintiffs punitive damages; in the fifth case, the judge prohibited the jury from doing so. The law also set a geographic radius — half-mile from the problematic farm — for neighbors who are eligible to sue for nuisance. Hog farms are exempt from nuisance suits, as long as the state has not cited them for civil or criminal penalties for water quality violations in the past three years; the law does not consider degraded air quality as a nuisance. Farms and forestry operations can’t be sued for nuisance if the ownership or type of agriculture changes — from chickens to hogs, for example. These entities are also immune even if they expand or install new technology — like biogas systems, which are proliferating in eastern North Carolina. Because of these restrictions, Craige argued, “no change, however radical will meet the threshold.” The appellate judges disagreed. The 2017 and 2018 Farm Acts, Tyson wrote, underscore the state’s policy in promoting agricultural and forestry activities and production by defining and limiting nuisance claims against those industries. “Limiting potential nuisance liability from agricultural, forestry, and related operations helps ensure the State’s stated goal to protect agricultural activities in North Carolina and to encourage the availability and continued “production of food, fiber, and other products,” Tyson wrote. He added: “Our State’s long-asserted interest in promoting and preserving agriculture, forestry, horticulture, livestock, and animal husbandry activities and production within North Carolina clearly rests within the scope of the State’s police power.” When the legislature was debating the Farm Acts, several lawmakers described the nuisance provisions as a “carve-out” for agriculture and forestry. But the appellate court ruled that since the laws are generally applicable to these industries, they do not create a special protected class. “A private law is confined to particular individuals, associations or corporations,” Tyson wrote, citing previous court cases. Although Smithfield Foods has a near-monopoly in North Carolina — Prestage Farms being the only other major pork producer — it was not singled out by name in the Farm Acts. Plaintiffs’ attorneys could appeal the decision to the state Supreme Court, but it’s unclear if they will do so. Haddix could not be reached for comment on Tuesday. Read the article on NC Policy Watch
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Unexplained drilling on land owned by former lawmaker alarms neighbors in Yadkin County
By: Lisa Sorg, NC Policy Watch December 12, 2021 Firm headed by developer with links to mining and fracking is looking for something on former State Rep. Wilma Sherrill’s property For the past six months, mysterious drilling has been conducted on a vast tract of land north of Hamptonville, in Yadkin County, and the company president behind the project is refusing to disclose what he’s looking for and why. Dozens of Yadkin County residents, many whose families have lived in the area for generations, are alarmed that the property might be become a mine, as the depth of the drilling holes has increased…
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NC governor vetoes bill that would keep local governments from banning natural gas
By: Adam Wagner, Raleigh News & Observer December 9, 2021 Gov. Roy Cooper vetoed a bill Thursday that would have prevented local governments from banning natural gas in new construction and limited public information about drinking water. No local governments in North Carolina have moved to ban natural gas from new construction, but some governments in California and the Northeast have. That led to a nationwide push by the natural gas industry to enact state laws preventing future bans, which have now been enacted in at least 20 states. “This legislation undermines North Carolina’s transition to a clean energy economy that is already bringing in thousands of good paying jobs,” Cooper said in a statement. “It also wrongly strips local authority and hampers public access to information about critical information that impacts the health and well-being of North Carolinians.” For House Bill 220 to become law, 72 members of the N.C. House of Representatives and 30 members of the N.C. Senate would need to vote to override Cooper’s veto. When the bill returned to the House for concurrence in late November, it passed 57-46. Environmental groups said the legislation would prevent future action by local governments to curb the impacts of climate change, while Republicans who supported the legislation said it would protect consumers’ ability to choose the source for their heating and appliances. “The heavy hand of government has no place in the personal decisions North Carolinians make for their households,” Rep. Dean Arp, a Union County Republican who is among HB 220’s primary sponsors, said in a written statement. Elsewhere in the country, banning natural gas is part of the effort to “electrify everything,” shifting cooking and cleaning to electric stoves and heat pumps. The thinking is that as electricity continues to be increasingly generated by renewable sources like solar and wind, electrified homes will contribute less to climate change than those with appliances and heat powered by natural gas. The NC Home Builders Association was among the trade groups supporting the passage of HB 220. An association lobbyist previously told The News & Observer that the organization was worried that banning natural gas in construction could cause prices to increase and limit consumers’ energy options. The Natural Resources Defense Council, which has opposed similar legislation nationwide, praised Cooper’s veto. In a written statement, Luiz Martinez, the NRDC’s Asheville-based director of Southeast energy, said, “North Carolina must be able to pursue new policies to combat climate change, create clean energy jobs, and make our communities healthier — and HB220 would have prevented that.” Together, North Carolina’s commercial and residential buildings were responsible for the equivalent of 11 million metric tons of carbon dioxide emissions in 2017, according to the N.C. Greenhouse Gas Emissions report released in January 2019. That was about 7.3% of the state’s gross emissions that year. In a written statement on Nov. 29, June Blotnick, the executive director of CleanAIRE NC, said, “City and county governments have been the vanguard of fighting climate change. This bill is a swipe at their ability to protect their constituencies.” A public records provision in the vetoed bill would prevent the public from obtaining detailed plans and vulnerability information about electricity generation or distribution; treatment or distribution of water; and wastewater outfalls. Environmental groups were worried that the language in HB 220 would prevent the public from obtaining detailed information about drinking water treatment or the locations of lead pipes. In a written statement, Cynthia Satterfield, the N.C. Sierra Club’s state director, said, “We support safeguarding our critical infrastructure, but we also support the public’s right to know how its water is being treated, and to have adequate information to provide comment on infrastructure projects.” The public records exemptions were originally introduced in House Bill 911. As the bill made its way through the House, a bipartisan group of legislators worked together to remove the wastewater collection and outfall exemptions. They also clarified that information about lead service lines would remain public. But HB 911 has stalled in the Senate for months, and the Senate added the original exemptions to HB 220. That raised some concerns among a bipartisan group of legislators in the House and, evidently, with Cooper. Read the article at Raleigh News & Observer
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