The North Carolina Government's attack on air & energy protections.
Over the past six years, the dismantling of North Carolina’s air quality and energy development protections has included:
- Repealing the prohibition on fracking
- Stripping the rights of local governments to establish zoning, health and safety regulations regarding fracking
- Reducing by approximately half the number of state air quality monitors, which are vital not only for detecting declines in air quality, but are also used on a daily basis by vulnerable North Carolinians to protect themselves from life-threatening reactions to air pollution
- Allowing the open burning of certain plastics used in agriculture without a permit
In 2011, the North Carolina General Assembly began to turn back the clock on the quality of the air we breathe. Starting that year, the state’s leaders did an about-face, pulling North Carolina away from a period of Carolina blue skies that resulted from two decades of removing carbon and other pollutants from the atmosphere and advances in clean energy development.
We have told you about the results of six years of dismantling environmental safeguards at the hands of the legislature and agencies like the Department of Environmental Quality to our state’s waters, including the postponement of protections for drinking water sources, contradictory communications with citizens about water safety, and sweetheart deals for Duke Energy and its notorious leaking coal ash pits. Here we consider the state government’s recent record on air and energy.
In response to the enactment of federal environmental protection laws of the early 1970s, the legislature passed a series of laws that prevented state agencies or local governments from passing any environmental rule more stringent than federal regulation. This meant that regardless of the specific circumstances of a city or county - or even the state as a whole - lawmakers could not provide needed regulation if it was more stringent than federal rules. This greatly limited the capacity of the state and its local governments to address their own environmental realities. Since every state has to comply with the minimum federal regulations, these laws handcuffing North Carolina to minimum requirements assured the state would be at the bottom of the class in protecting water and air quality.
In 1991, the legislature repealed the last of the laws handcuffing the state to federal standards, ushering in a period of environmental protection and stewardship in North Carolina. Freed from artificial limitation, North Carolina sped to the head of the class in protection of our water and air.
In 2011, after 20 years of progress on restoring the states air quality, the legislature reenacted the handcuff law, again prohibiting state agencies from adopting environmental protections more stringent than minimum federal regulations. Additionally, in an attempt to ferret out state protections that might exceed minimum federal requirements, the legislature targeted all regulations, including environmental regulations, for automatic repeal without the Department of Environmental Quality review and legislative approval to retain them.
Since that inauspicious beginning, in each year since 2011 the legislature has chipped away at the state’s air quality protections. In 2011, at the request of five of the state’s major polluters and with the full support of the Department of Environment and Natural Resources, the legislature passed a bill to repeal North Carolina’s health based regulations regarding toxic air pollutants emitted by industrial facilities. These longstanding regulations were designed to protect citizens from breathing air containing toxic chemicals that pose significant threats to their health.
In 2011, at the request of five of the state’s major polluters and with the full support of the Department of Environment and Natural Resources, the legislature passed a bill to repeal North Carolina’s health based regulations regarding toxic air pollutants emitted by industrial facilities.
In 2015, the legislature enacted H765, nicknamed “the Polluter Protection Act” by opponents and the media. Among many other things, the law eliminated restrictions on heavy-duty vehicles’ idling. Trucks that once would have had to turn off their engines instead of spewing exhaust during periods longer than five minutes per hour can now idle away, even when parked next to playgrounds.H765 also allows farmers to burn recyclable plastics - sending pollutants directly into the air. To provide further protection to polluters, the legislature included an “environmental self-audit privilege” in H765. This provision shields companies that violate environmental laws from penalties if they self-report the violation, though the degree of disclosure is presumably at the discretion of the polluter. It also hides evidence from injured neighbors seeking a remedy in court. Thankfully, this far-reaching immunity requires approval from the Environmental Protection Agency, which has not yet been granted.
Finally, in 2015 the legislature passed a bill that dramatically reduced the number of air quality monitors in North Carolina. This came soon after the passage of a bill that limited citizens’ rights to protest air-pollution permits. By taking away the means by which citizens would be aware of pollution in their area, and then limiting their ability to address the problem if discovered, the legislature rolled out the red carpet for polluting industries.
Beginning with the Clean Smokestacks Act in 2002 that closed down old polluting coal-fired power plants, and continuing with the Renewable Energy and Energy Efficiency Portfolio Standard in 2007 that requires utilities to utilize an increasing percentage of renewable energy sources in their generation of electricity, North Carolina emerged as a national leader in the development of clean energy. The results were astonishing. North Carolina eventually became the state with the third-highest solar capacity, with more than 2,000 megawatts of solar capacity - enough to power 223,000 homes. This boom led to the creation of more than 450 solar companies in North Carolina, more than $4 billion in investment, and some 4,000 jobs in the state.
Despite the success of this industry and its benefit to North Carolina’s economy, the legislature and the executive branch have attacked clean, renewable energy. In 2015, the legislature voted to sunset the tax credit for installation of residential and commercial solar generation that was partially responsible for spurring this job growth and investment. In addition, certain legislators have relentlessly tried to repeal or freeze the Renewable Energy and Energy Efficiency Portfolio Standardevery year since 2012. Despite some legislators’ best efforts, the Renewable Energy and Energy Efficiency Portfolio Standard remains in place, improving the way North Carolina utilities produce energy, keeping carbon pollution out of the atmosphere, and generating economic growth.
In 2016 two state Senators introduced S843, which would “protect” citizens by requiring 1.5 mile setbacks from each property line for all clean energy installations. This would have rendered virtually all of the state’s current clean energy installations illegally sited, and would make further development nearly impossible. Also this year, spurred by the head of the Department of Environmental Quality, some members of the Energy Policy Council, an appointed board that advises the governor on energy issues, proposed extremely onerous permitting and bonding requirements for solar facilities. Thankfully, business leaders on the Council rejected the proposition.
Even as the legislature attempts to thwart renewable energy development, it is inviting dirtier, conventional energy production to our state. Since 1945 North Carolina banned underground horizontal drilling in order to protect our groundwater and drinking water. In 2012, however, the legislature passed S820, which legalized horizontal drilling, opening the state to hydraulic fracturing (fracking) pending the passage of rules regulating the practice. Because of the many documented dangers of fracking, many legislators did not back the plan. Governor Perdue vetoed the bill, but the legislature overrode the veto and fracking became legal in North Carolina. Two years after the passage of S820, and before the state’s Mining and Energy Commission had even finalized the rules, the legislature passed S786, the “Energy Modernization Act,” fast-tracking fracking, and breaking the promise to carefully review the Mining and Energy Commission rules before giving final approval.
In the bill that legalized fracking, the legislature gave itself the power to name the majority of the members of the Mining and Energy Commission. The executive branch resisted, believing that unless the governor has the capacity to appoint the members of an executive commission, the commission is unconstitutional. And indeed, the North Carolina Supreme Court agreed, finding the Mining and Energy Commission’s successor, the Oil and Gas Commission, unconstitutional in 2016. It remains to be determined whether an unconstitutional body can create valid regulations. For now, there is a de facto moratorium on fracking in North Carolina until the legal landscape is clear.
Although the legislature did not ensure that the state’s citizens are protected from the dangers of fracking, it did protect the frackers from the citizens. The Energy Modernization Act allows energy companies to keep secret the brew of chemicals they use when fracking, and it even criminalizes the release of that information. Any citizen who reveals the makeup of fracking fluid to the public, even an emergency medical professional, is guilty of a crime. The next year, the legislature also included $500,000 in the budget for the state to spend to assist the fracking industry by drilling test wells in Lee, Stokes, and Cumberland Counties, even though this type of testing is typically funded by the industry. This funding stands in stark contrast to the more than $500,000 in grants from the Environmental Protection Agency that the Department of Environment and Natural Resources actually turned down in 2013. The grants would have funded water quality monitoring stations in wetlands and areas likely to be adversely affected by fracking.
Although the legislature did not ensure that the state’s citizens are protected from the dangers of fracking, it did protect the frackers from the citizens.
Not only did the legislature authorize fracking, it prohibited local governments from passing any regulation to manage the dangerous practice. Under cover of night, in the final hour of the 2015 legislative session, after 4:00 a.m., the state Senate slipped a provision into a “technical corrections” bill that attempts to prohibit local governments from regulating fracking in any manner. This language was not in any prior bill that legislative session, and received no committee hearing or vetting of any kind by the public or by the affected local governments. This preemption represents another attempt by the state to lure the fracking industry to North Carolina over the objection of those who would be most directly impacted.
The state government has embraced dangerous energy development practices, discrimination against clean energy development, the dissolution of the capacities of local governments to adopt regulations to control pollutants in their own borders, and the criminalization of information sharing – everything short of legalizing pollution.
To summarize: In the last six years the legislature has authorized fracking and prohibited local governments from passing any regulation of the dangerous practice. It has repealed state air pollution protections and required the Department of Environmental Quality to eliminate air quality monitors. It has weakened or removed prohibitions on the idling of heavy-duty trucks and the unregulated open burning of plastics. It ended the Renewable Energy Tax Credit. Some legislators have continually labored to weaken or repeal the Renewable Energy and Energy Efficiency Portfolio Standard that requires the state’s utilities to work towards greater reliance on safe, environmentally friendly renewable energy, and some have tried to pass preposterous limits on renewable energy installation, while authorizing the use of taxpayer funds to support fracking research. Meanwhile, the executive branch has supported environmentally harmful propositions like offshore drilling and fracking, and enabled Duke Energy to leave half of its leaking coal ash pits right where they are, leaking lead, arsenic and mercury into our ground and surface waters for decades to come.
Next, we discuss our land and special places.