January 26, 2024. In North Carolina, adopting a new state rule involves many steps and multiple levels of review. But the rulemaking process has recently obstructed a water quality standard in ways not intended by  the  N.C. Administrative Procedure Act (APA). As a result,  the rule setting a water quality standard for 1,4 dioxane — a toxic pollutant and likely human carcinogen — cannot go into effect even though there has been no legally supported objection to the rule. 1,4 dioxane. The U.S. Environmental Protection Agency (EPA) has identified 1,4 dioxane (used in solvents and ..read more

December 19, 2023. The previous post covered significant water quality legislation enacted by the North Carolina General Assembly in 2023. This post briefly summarizes other 2023 environmental legislation. AIR QUALITY. The legislature put two provisions in the Appropriations Act of 2023 (House Bill 259) to prevent state agencies from adopting rules intended to reduce emissions of greenhouse gasses such as carbon dioxide (CO2) in the state. Other air quality provisions expedite permitting and construction of new or expanded sources of air pollutants. Prohibit cap and trade programs for CO2 emis ..read more

October 30, 2023.  An earlier post described the interaction of new state limits on wetlands protection and a U.S. Supreme Court decision reducing federal Clean Water Act (CWA) jurisdiction over streams and wetlands. (See State Law: Removing Wetlands from “Waters of the State”.) This post provides an update on federal implementation of the Sackett decision and new information on the impact of the wetlands provision in the N.C. Farm Act (Senate Bill 582/ Session Law 2023-63). Federal Implementation of the decision in Sackett v. EPA. In  Sackett v. EPA, a plurality of four justices iss ..read more

June 7, 2023 — In an unfortunate sequence of events, the U.S. Supreme Court has issued a decision significantly limiting  federal Clean Water Act regulation of wetlands  just as the N.C. General Assembly has been moving legislation to limit state water quality protection for wetlands. First, some background. Historically, states had the primary responsibility for protecting state waters from pollution. But in 1972, Congress adopted the Clean Water Act and asserted federal jurisdiction over  “waters of the United States” to create a national water pollution control program ..read more

January 4, 2023.  By coincidence rather than design,  two different approaches to reducing greenhouse gas emissions from the electric power sector have been under discussion by North Carolina agencies since 2021. This post will describe draft rules being considered by the N.C. Environmental Management Commission (EMC) in response to a petition for rulemaking submitted by Clean Air Carolina and the N.C. Coastal Federation.  The rulemaking petition asked the EMC to adopt rules requiring units serving electric generators of 25 MW or greater to participate in a market-based program ..read more

December 12, 2019.  On December 5, the Environmental Integrity Project (a national nonprofit organization) issued a report on state funding for environmental protection programs. The report, The Thin Green Line,  looks at staffing levels and funding for environmental programs between 2008 and 2018 in the lower 48 states. In addition to providing funding and position numbers for each state, the report profiles five states — including North Carolina.  During the period covered by the report, N.C. environmental programs experienced one of the highest levels of cuts to both operatin ..read more

June 4, 2021. The NC. Senate voted yesterday to disapprove the nomination of Dionne Delli-Gatti as Secretary of the Department of Environmental Quality (DEQ). Republican Senators  continued to tie the disapproval to dissatisfaction with Delli-Gatti’s earlier responses to questions about Cooper administration policy on natural gas in general and the Mountain Valley Pipeline Southgate project in particular.  Senators cited recent disruption of gasoline supplies due to a cyber attack on Colonial Pipeline to highlight the risk to natural gas supplies similarly reliant on a single major p ..read more

June 2, 2021 — After a month long delay,  the Senate Agriculture, Energy and Environment Committee voted along party  lines today to disapprove Governor Cooper’s nominee to be Secretary of the Department of Environmental Quality.  The committee held a hearing on the nomination of Dionne Delli-Gatti a month ago, but took no action on the nomination. Today,  the committee voted to disapprove the nomination on a motion by Sen. Paul Newton. Sen. Newton, a former president of Duke Energy’s North Carolina operations,  expressed dissatisfaction with Delli-Gatti’s earlier resp ..read more

January 6, 2020. On December 23, 2019, the UNC Policy Collaboratory released a legislatively mandated report on nutrient pollution in Jordan Lake.  The short version: A three year, multi-million dollar study has confirmed the science and policy underlying the 2009 Jordan Lake water quality rules. Background.  In 2002, the North Carolina Environmental Management Commission (EMC) designated Jordan Lake as having impaired water quality due to excess nutrients  (nitrogen and phosphorus) contributing to algal blooms in the lake. The EMC and  water quality staff  in the Department of Environmental Q ..read more

December 27, 2019. A  short list of environmental and energy law changes compared to recent years: Fisheries.   As interest in  shellfish aquaculture has increased, so have concerns about the impact of the rapidly evolving aquaculture industry on water recreation and navigation.  Senate Bill 648   creates a new framework for management of aquaculture operations by allowing the Division of Marine Fisheries (DMF) to designate  “shellfish aquaculture enterprise areas” where water bottom and water column leases can be issued for shellfish aquaculture. Similar to water use zoning, the concept gives ..read more