Category Archives: Animal Waste

Action: 2019 Budget

July 9, 2019. The 2019 legislative session got off to a very slow start. Few bills moved  before the May 9 deadline for substantive bills to pass one chamber of the legislature to stay alive. The pace picked up in the last month as both the House and Senate passed versions of a budget bill (House Bill 966)  and then agreed on a final budget. Governor Cooper immediately vetoed the budget bill for reasons unrelated to environmental provisions. (The Governor’s veto statement  criticized the legislature’s budget priorities; refusal to expand the state’s Medicaid program had been one sticking point.) This blogpost looks at some of the environmental provisions in the budget.

Funding Related to Emerging Contaminants Such as GenX.

Reallocation of state funding appropriated in 2018 to extend water lines in areas with well contamination caused by GenX. In 2018, the legislature allocated $2 million to DEQ’s Division of Water Infrastructure to help local governments extend water lines to properties affected by contamination caused by per‑ and poly‑fluoroalkyl substances (PFAS) including GenX.  Section 12.13 of the  2019 budget bill  reallocates those funds for a number of projects unrelated to PFAS. In February 2019, Chemours entered into a settlement agreement  with DEQ that requires the company to provide a replacement water supply to any person whose well has PFAS contamination above the health advisory level. Under the agreement, the replacement water supply means connection to a public water system unless the well owner declines or DEQ finds it would be prohibitively expensive or unsafe.

Additional funds to address emerging contaminants through water quality permitting. The budget funds five new positions in DEQ to address emerging contaminants. The positions include two new engineers to work on issuance and renewal of Clean Water Act wastewater discharge permits.

State Funding to Eliminate a Conservation Easement and Buy Back Mitigation Credits.   In an unusual (and unprecedented) provision, the legislature earmarked over $800,000 to eliminate a conservation easement on a completed stream restoration project.  The project, restoration of Little Alamance Creek in Burlington, was completed in 2012-2013. The creek had impaired water quality; the restoration project, which included replanting stream bank vegetation, was designed to improve water quality in the creek. The stream restoration project also generated mitigation credits intended to offset the stream impacts of N.C. Department of Transportation (NCDOT)  road construction projects. (Federal and state water quality permits often require the project developer to offset stream or wetland impacts by funding restoration of similar natural resources.)

The City of Burlington donated property for the conservation easement, which runs through a Burlington city park, but later had both aesthetic and public safety concerns about the completed stream restoration.  According to city staff, trees planted along the stream had not overtaken the shrubby undergrowth as expected. City officials were unhappy with the appearance of revegetated stream bank and worried that the vegetation provided cover for criminal activity.

The  budget provision requires DEQ to dissolve the conservation easement on Little Alamance Creek and reimburse funds used to purchase mitigation credits generated by the project. If NCDOT received mitigation credits from the Little Alamance Creek project as expected,  the department will have to buy  mitigation credits from other stream restoration projects to stay in compliance with its road construction permits. In that case, taxpayers will have paid for the mitigation credits twice since there is no possibility of recovering funds already spent on restoration of Little Alamance Creek. If a private developer received any of the credits generated by the project, the state buyback would be used to replace the developer’s credits. The cost is significant; the budget appropriates $837,755.00, but also directs DEQ to draw on other department funds if the actual cost exceeds the amount appropriated.

Removal of the conservation easement may allow the City of Burlington to alter the stream bank vegetation. It isn’t clear whether the city has a specific plan or what impact the changes will have on the stream’s water quality.

Delay Update of  State Water Quality Permits for Large Animal Operations. One of the policy provisions in the budget delays renewal of the water quality permit that covers most large animal operations. DEQ had completed a nearly year-long process to update and reissue the state water quality permits for large animal operations, including swine farms. The general permits set operating conditions for different categories of farms to protect surface water and groundwater from contamination by animal waste. The recently finalized general permits included some new or modified conditions, including a requirement for swine farms to monitor groundwater quality around waste lagoons located in the 100-year floodplain.

The N.C. Farm Bureau filed an appeal to challenge some of the conditions on the new general permits. In Section 12.19, the budget bill prevents DEQ from covering farms under the new general permits until 2020.   In effect, the bill delays enforcement of any new conditions and allows farms to continue to operate under the old permits while the N.C. Farm Bureau pursues its appeal.

During the delay, the budget provision directs DEQ to study whether water quality general permits should be adopted under the rule making procedures in the state’s Administrative Procedures Act. Note: As a practical matter, the process DEQ used to develop and finalize the general permits exceeded the basic public notice and hearing requirements of the APA.

2018 Environmental Legislation Part 2: Environmental Bills

July 28, 2018.  In addition to the environmental policy changes in the budget, several  bills amended environmental laws. Among the more significant changes:

Stormwater. Sec. 14 of House Bill 374  (2018 Regulatory Reform Act) directs the Environmental Management Commission  to study delegated local stormwater programs to identify: 1. local governments that enforce requirements exceeding those in state law, including requirements for inspection and maintenance of stormwater systems; and 2. those that since August 1, 2015 have taken enforcement actions based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit that exceed the requirements in state law.

When a water body chronically violates a water quality standard, the  Clean Water Act requires a limit on discharge of the problem pollutant to eliminate the  water quality violation –  a “total maximum daily load”. The TMDL caps  total releases of the pollutant to the impaired water body. Each wastewater treatment plant or industry that discharges wastewater directly or indirectly to impaired waters receives a permit limit  for the pollutant;  the sum of all the permitted discharges  cannot exceed the cap.  In areas like the Jordan Lake watershed,  stormwater rules have been used as an additional tool for meeting a TMDL for nutrient pollution  by also reducing the release of nutrients in runoff.  The H374 provision refers to this use of stormwater regulation as part of a larger TMDL for nutrient pollution and enforcement of the TMDL  through a federal stormwater discharge permit.

The provision is the most recent  in a series of legislative efforts to limit the scope of local as well as state stormwater requirements. It’s interesting that the  bill specifically targets  local requirements for inspection and maintenance of stormwater systems that may be required to comply with state and federal law. It isn’t clear how local  enforcement actions “based on requirements under a Total Maximum Daily Load (TMDL) calculation or NPDES permit” could exceed  requirements in state law since the state develops the TMDLs and issues the NPDES  permits.

Coastal Stormwater. Sec. 16 of House Bill 374 in effect creates a new coastal stormwater exemption for older subdivisions. State coastal stormwater rules require residential subdivision development  near sensitive coastal waters to  control stormwater  to reduce pollutant runoff.  The stormwater management plan often includes limits on the amount of paved or built-on area in the subdivision to provide adequate natural area to absorb runoff. The impervious surface limits appear in the developer’s  stormwater permit for construction of the subdivision.  Once the subdivision has been significantly built out,  the developer typically transfers ownership and control over all common areas — including the stormwater system —  to a homeowners’ association.  To insure stormwater standards continue to be met, coastal stormwater rules require the developer to reflect those impervious surface limits in the development’s restrictive covenants. People who buy or build in the subdivision are bound by the restrictive covenants, which can be enforced by the HOA or the state. There have been a few sympathetic situations in the past where a developer turned a subdivision that was already in violation of its stormwater permit over to the HOA, leaving the HOA to contend with an immediate enforcement action.  But there have also been situations where subdivision residents added impervious surface (expanded parking areas, storage buildings, home additions) in violation of the restrictive covenants after the developer left the picture.

The new provision applies to subdivisions platted 20 or more years ago without regard to when construction in the subdivision actually began. Under H374, a  subdivision with excess impervious surface  will be “deemed to be in compliance” with the impervious surface limits in state stormwater rules if the HOA didn’t receive a notice of  non-compliance at the time responsibility for the system transferred from the developer to the HOA.

The provision may have unintended consequences. First,  it’s not clear how the provision will affect enforcement actions against a developer who violated the stormwater permit during construction since the law “deems” the subdivision to be in compliance. The provision also allows a subdivision to retain impervious surface added long after transfer of ownership from the developer in violation of subdivision restrictive covenants. In these older platted subdivisions, H374 deems all excess impervious surface added before  January 1, 2017 to be in compliance with the stormwater rules.

Swine waste management. The 2018 Farm Act, Senate Bill 711 greatly limits nuisance lawsuits against swine operations. See an earlier post for an in-depth discussion of S711.  The new law only applies to nuisance claims filed after S711 became law, so it does not affect dozens of nuisance claims already filed on behalf of people living near swine farms. Although clearly a response to the swine farm nuisance lawsuits, the new restrictions on nuisance claims apply to any kind of agricultural or forestry operation.

Protecting Agriculture v. Protecting Property Rights

June 18, 2018.  Last year, Session Law 2017-11  limited the compensation a property owner could recover for nuisance conditions caused by an agricultural or forestry operation. Last week, the N.C. legislature significantly rewrote North Carolina’s “Right to Farm Act” in Senate Bill 711 to all but eliminate a property owner’s ability to protect their property from being devalued because of nuisance conditions caused by large swine operations.  (Although the bill covers all types of agriculture and forestry operations, it clearly represents an additional and more extreme response to potential nuisance lawsuits against North Carolina swine farms.)

“Nuisance” means interference with the use and enjoyment of another person’s property.  Last year, a group of North Carolina residents won several million dollars in damages in nuisance cases against swine farms based on conditions such as odor, pests, and exposure to ammonia emissions that caused health problems and restricted outdoor activities on their property. See an earlier post for more background on the lawsuits. Historically, North Carolina case law has also recognized nuisance claims based on injury to a business and health problems caused by a nuisance condition.

In response to the nuisance lawsuits against swine operations, Session Law 2017-11 limited the kind of compensation that a person could receive in future nuisance cases to loss of fair market value or fair rental value of their property.  The law effectively eliminated the ability to get compensation for other types of injury such as  business loss, although the law did not bar additional damages if the plaintiff could prove negligence, trespass or personal injury.

Senate Bill 711 takes the much bigger step of making nuisance lawsuits against agricultural operations all but impossible. It also seems to  turn the concept of “Right to Farm” on its head. “Right to Farm” laws (adopted in nearly every state)  protect  farms  from nuisance claims by people who  buy property near an existing farm because they presumably  bought with knowledge of the agricultural activity.  North Carolina has had a “Right to Farm” law since 1979.  Under that law (G.S.  106-701), an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around the farm.     In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

“Right to Farm” becomes “Right to Create a Nuisance”.  Senate Bill 711 reverses the entire concept of “Right to Farm” laws to protect the ability of agriculture operations to change, grow, and increase their impact on nearby property owners and residents. Under the bill,  a  property owner loses the right to sue a  farm for nuisance conditions that interfere with use of their property unless they file the lawsuit within the first year after the farm begins operation or within one year after there is a fundamental change in the farming operation. The Catch-22 in the bill is that “fundamental change” does not include:

(1) A change in ownership or size of the farm.

(2) An interruption of farming for a period of no more than three years.

(3) Participation in a government-sponsored agricultural program.

(4) Employment of new technology.

(5) A change in the type of agricultural or forestry product produced.

The Impact on Property Rights.  Under S711,  people who live or have a business near any agricultural operation will find their ability to protect  use and enjoyment of  their property severely limited.  A person who owns property near a soy bean farm  could not bring a nuisance lawsuit if the farm  becomes a large animal operation a year later that produces odors, pests, ammonia emissions or other impacts interfering with use of their property. Under the new law, that property owner waived the right to sue based on the nuisance conditions because they failed to complain about an entirely different kind of farm that did not have the same impacts.
The restrictions on nuisance  lawsuits against agricultural and forestry operations are also unique to those land uses. A property owner who suffers from nuisance conditions as a result of a manufacturing plant does not face the same restrictions on seeking compensation.
Status. The bill has been sent to Governor for signature or veto.

Pigs (Again) Update

April 26, 2017. Yesterday, the Senate Agriculture, Environment and Natural Resources Committee approved a revised version of House Bill 467. The Senate changes resolve some of the questions  noted in the earlier post  about the bill’s impact on availability of punitive damages and compensation for injury other than lost property value.

The version approved by the Senate committee has a new subsection that reads:

(d) This Article does not apply to any cause of action brought against an agricultural or forestry operation for negligence, trespass, personal injury, strict liability, or other cause of action for tort liability other than nuisance, nor does this Article prohibit or limit any request for injunctive relief or punitive damages that are otherwise available.

The Senate language:

♦ Expressly allows an award of punitive damages against an agricultural or forestry operation based on existing standards in North Carolina law.

♦ Makes it clear that the bill does not limit compensation a plaintiff can receive under legal theories other than nuisance — including negligence, trespass, strict liability “or other cause of action for tort liability other than nuisance”.  In legal-speak, a  “tort” means a wrongful act injuring another person and recognized by law as the basis for a civil lawsuit. The injury may be damage to reputation or property as well as physical injury.

Under “strict liability”,  a person can be held legally responsible for harm even if there is no evidence of negligence. Historically, strict liability  has applied only to  a very narrow set of activities considered to be ultrahazardous —  the classic example has been use of explosives. Few (if any) activities associated with an agricultural or forestry operation would fall under strict liability standards.

As applied to agricultural and forestry operations,  the  most significant implications of the Senate language are:  1.  recognition of a plaintiff’s ability to  receive compensation (beyond fair market value of the property) for harm caused by negligence or trespass;  and 2. preservation of the potential for punitive damages in a particularly egregious nuisance case.

One reference in the new Senate language is not like the others — unlike  nuisance, negligence, or trespass, “personal injury” in itself is not a cause of action.  Instead, “personal injury” describes a type of harm the plaintiff may have suffered as a result of negligence, nuisance, trespass or some other tort.

The House version of H 467 limited damages for nuisance to fair market value or fair rental value of the property affected — apparently excluding compensation for health effects caused by the nuisance condition. Given the context, It isn’t clear  whether the Senate language  intends to allow compensation for  health effects in a nuisance action against an agricultural/forestry operation — or simply acknowledges the possibility of compensation for personal injury under another legal theory such as negligence.

The bill has now been referred to a Senate Judiciary Committee for review before going to the Senate floor.

Pigs (Again)

April 25, 2017. Two weeks ago, the  N.C. House quickly approved a bill limiting the money damages available to a plaintiff who wins a nuisance lawsuit against an agricultural or forestry operation. According to the bill title,  House Bill 467    “clarifies” the compensation available to a person whose property use has been negatively affected by agricultural or forestry activities.

The backstory.  In  2014, multiple nuisance lawsuits representing hundreds of North Carolina plaintiffs  were filed against Murphy Brown LLC (the grower subsidiary of Smithfield Foods)  in federal court. The plaintiffs  allege that odors, ammonia emissions, pests and other conditions associated with nearby swine farms negatively affect the use of their property.  A 2015 Charlotte Observer story provides a good overview of the claims.  The nuisance cases allege  many of the same problems described in a separate civil rights complaint concerning N.C. swine farms  filed in 2014. (That complaint remains under investigation by the U.S.  Environmental Protection Agency; see a previous post for more on the environmental justice complaint and EPA’s preliminary response.)

H 467 limits compensation available to a person who successfully proves an agricultural or forestry operation has created noxious conditions that interfere with use of their property. As originally introduced, the bill limited compensation available in both  pending and future lawsuits.  In a letter to the News and Observer, Rep. Jimmy Dixon described the bill as a necessary response to greedy lawyers who “want to sue farmers for outrageous sums without having to prove real damages”.   Although more broadly worded, H 467  clearly responded to the pending nuisance lawsuits against swine operations.

The General Assembly has acted to protect agricultural operations from nuisance lawsuits before. North Carolina has had a “right to farm” law since 1979.  Under G.S.  106-701, an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around it.    “Right to farm” laws (adopted in nearly every state) attempt to protect  farms  from nuisance claims by people who later buy property near the farm  — presumably with knowledge of the existing agricultural activity.  In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

How H 467 Would Affect Compensation for Nuisance.  “Nuisance” means interference with the use and enjoyment of another person’s property.  For example, plaintiffs in the pending swine farm nuisance cases allege conditions created by farm operations (including odor, pests, and exposure to ammonia emissions)  have caused health problems and restrict outdoor activities.  H 467  limits the money damages that a plaintiff who successfully proves a case of nuisance can recover as compensation. Under the bill, compensation for a nuisance condition caused by an agricultural/forestry operation would be limited to either the fair market value of the property affected (for a permanent nuisance) or the fair rental value (for a temporary nuisance).

Historically, North Carolina case law has recognized other types of nuisance damages such as injury to a business.  One case allowed compensation for water pollution that damaged a downstream fishing/ fish processing operation.  Nuisance cases have also sometimes alleged health problems caused by the nuisance condition. H 467 does not allow a plaintiff to recover damages for a business loss  or compensation for negative health effects. The only compensation for an agricultural/forestry nuisance allowed under the bill would be the fair market value or fair rental value of the plaintiff’s property.  (I do not know whether compensation for health effects could be available under a legal theory other than nuisance.)

The bill may also bar award of punitive damages, which a court can award to punish and deter bad actors.    In  North Carolina, G.S. 1D-15 allows the court to award punitive damages  if the defendant has been found liable for compensatory damages (such as lost property value due to nuisance conditions) and the plaintiff proves one of three aggravating factors: 1. fraud 2. malice or 3. willful or wanton conduct.  Willful or wanton conduct means “the conscious and intentional disregard of and indifference to the rights and safety or others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.”  See G.S. 1D-5 (7).   Without further clarification,  H 467 may be interpreted to prevent an award of punitive damages even if the defendant willfully ignored the likelihood of harm to nearby property or acted in violation of state law.

The Scope of H 467. The bill, as first introduced, would have applied to both pending nuisance lawsuits and future lawsuits. Two prominent Republican lawyers, former N.C. Supreme Court Justice Robert Orr and former Representative Paul Stam, raised questions about the constitutionality of limiting compensation available under pending lawsuits.  In response to those concerns, the bill was amended to apply only to future nuisance lawsuits;  the House then adopted the bill as amended.

H 467 also contains a provision that extends the limitation on nuisance damages to “any private nuisance claim brought against any party based on that party’s contractual or business relationship with an agricultural or forestry operation”.  The language most likely  intends to protect parent corporations sued as a result of nuisance conditions created by a subsidiary or contractual supplier. For example, the limit on damages would apply to Smithfield Foods as the parent company of Murphy Brown LLC even though Smithfield Foods itself would not be considered an “agricultural operation”.

Status of the bill. Having passed the House, H 467 still needs Senate approval. The bill has been scheduled for discussion in the Senate Agriculture, Environment and Natural Resources Committee today. If the bill receives the committee’s endorsement, it would go back through the Senate Rules Committee before reaching the Senate floor. (Note: Bills often pop out of the Rules Committee without warning.)

Bonus literary tip — A  favorite children’s picture book by David McPhail describes a different kind of piggy  nuisance.

Pigs and the Civil Rights Act Part II: The Earth Justice Complaint

April 6, 2017. An earlier post described the intersection of environmental permitting and civil rights laws in the environmental justice movement. A  2014 environmental justice complaint filed by Earth Justice, REACH and the Waterkeepers  (the “Earth Justice complaint”)  argues the state of N.C. has discriminated against African-American, Latino and Native American residents by issuing a general permit for swine farm waste management systems that fails to protect those communities from air and water pollution. On January 12, the U.S. Environmental Protection Agency (EPA) sent a “Letter of Concern” to the Department of Environmental Quality (DEQ) about possible discrimination against minority residents as a result of the swine waste general permit. This post will look at the basis for the Earth Justice complaint and the significance of EPA’s letter.

First, what is a general permit? An individual permit covers a single facility; a general permit covers a category of facilities.   The  state general permit for swine farms covers swine farms with more than 250 animals (the number triggering the need for a  state permit).  Most  swine farms in North Carolina meet state permitting requirements by qualifying for coverage under the general permit. The general permit allows farms to use large open lagoons to store and treat swine waste and spray liquid waste on crops as a fertilizer. Permit conditions prohibit discharge of waste to rivers and streams; require measures to maintain the structural integrity of waste lagoons; limit spray irrigation of wastewater to avoid runoff and groundwater contamination; and require other management practices to reduce environmental impacts.  The Department of Environmental Quality (DEQ) has  reviewed and reissued the general permit about every five years since issuance of the first general permit in 1997.  The Earth Justice complaint concerns the most recent version of the general permit issued by DEQ in 2014.

For purposes of this post, I  will assume the Earth Justice complaint correctly describes the racial makeup of communities near large swine farms. The next question would be:  What does the Civil Rights Act of 1964 require of the state?

The Earth Justice complaint. The most significant issues:

Failure to do a disparate impact analysis.  The complaint contends DEQ failed to determine whether the state swine farm general permit has a disparate impact on African-American, Native American and Hispanic communities. A disparate impact analysis determines whether policies that appear racially neutral have a greater negative impact on minority communities in practice. It seems indisputably true that the state has not considered the racial or ethnic makeup of communities near swine farms in adopting laws, rules and permit conditions for operation of those facilities.

Failure of the swine farm general permit to protect minority communities. The complaint then argues the general permit fails to protect minority communities from environmental and health impacts, such as well contamination, odors,  and exposure to ammonia emissions.  The complaint questions the adequacy of specific permit conditions (such as setbacks between sprayfields and drinking water wells),  but essentially faults the state for continuing to allow existing swine farms to use conventional lagoon and spray field systems to manage swine waste.

Unlawful intimidation of a person who complains of discrimination.  After mediation efforts collapsed in 2016, the complainants added a new allegation of intimidation. EPA took the intimidation charge seriously and discussed evidence of intimidation at some length in the January 12, 2017 letter to DEQ.  The EPA letter cites reports of intimidation by swine farm operators or employees rather than by DEQ staff.  but emphasizes  DEQ’s responsibility to prevent or effectively respond to reports of intimidation.

This post will focus on the allegation that N.C.’s swine farm general permit fails to protect minority communities.

North Carolina’s history with lagoon and sprayfield systems. Lagoon and sprayfield systems are the most common method of swine waste management, but have also been controversial since the 1990s.  Explosive growth in North Carolina swine operations and several large swine waste spills raised public concern and attracted legislative attention.  In 1997,  the legislature tightened permitting requirements and put a temporary moratorium on construction of new  or expanded swine farms using conventional lagoon and sprayfield systems. The legislature extended the temporary moratorium several times before permanently barring construction of new or expanded swine farms using lagoon and sprayfield systems in 2007. As a result, all of the farms covered by the state general permit began operation before March 1, 1997.

Those existing swine farms have continued to use  lagoon and sprayfield systems while the state researched more environmentally  friendly alternatives. In  2000, the state commissioned a  N.C. State University (NCSU) study funded by  an agreement with Smithfield Foods and other swine producers to identify “environmentally superior” waste management technologies. Under the “Smithfield Agreement”,  Smithfield Foods agreed to convert company-owned swine farms to a waste management technology identified by NCSU as environmentally superior to the lagoon/sprayfield system and both operationally and economically feasible.   An “environmentally superior” technology would:

(1)        Eliminate the discharge of animal waste to surface water and groundwater through direct discharge, seepage, or runoff.

(2)        Substantially eliminate atmospheric emission of ammonia.

(3)        Substantially eliminate the emission of odor that is detectable beyond the boundaries of the parcel or tract of land on which the swine farm is located.

(4)        Substantially eliminate the release of disease-transmitting vectors and airborne pathogens.

(5)        Substantially eliminate nutrient and heavy metal contamination of soil and groundwater.

In 2006, NCSU’s  Dr. Mike Williams identified several innovative technologies that in combination met the environmental standards and could be operationally/economically feasible for use on new farms.  But Dr. Williams concluded none of the technologies would be economically feasible for use on existing farms because of conversion costs.     Dr. Williams has reviewed new generations of those technologies since 2006. Although costs for some technologies have come down, Dr. Williams  has still not designated any technology as  economically feasible for use on existing swine farms. Dr. Williams’ last update appears to have been issued in 2013.

On a separate track, the N.C. legislature included a set-aside for energy generated by capturing methane from swine waste systems as part of the state’s 2007 Renewable Energy Portfolio Standard (REPS).   One purpose of the set-aside was to encourage development of swine waste-to-energy systems that may have the additional benefit of reducing environmental impacts including odors and ammonia emissions. Several companies have begun development of swine waste-to-energy systems, but for technical reasons those projects have been slow to reach completion.

So the state has recognized potential problems with lagoon and sprayfield systems and invested time, energy and money in researching alternatives.  But the state has not required farms to adopt new technologies or imposed significant additional conditions on operation of existing systems. In questioning the decision to continue permitting lagoon and sprayfield systems, the Earth Justice complaint  puts that 20-year state policy debate and the decision not to impose additional regulatory requirements  in the context of racial discrimination.

The U.S. Environmental Protection Agency.  When mediation of the Earth Justice complaint fell apart in 2016, EPA reopened review of the complaint under Title VI of the Civil Rights Act.  EPA has not completed its investigation, but the  January 12 letter set out preliminary findings. The letter expressed concern that the state swine farm general permit may discriminate against minority communities and recommended specific steps to address the concern.  Some of the recommendations are procedural,  such as creation of a grievance procedure and designation of a DEQ staff person to coordinate response to environmental justice complaints as required under EPA rules. Other recommendations require review of  N.C. laws, rules and enforcement policies on swine operations.

Historically, federal environmental justice  guidance focused on the permitting process rather than environmental standards. EPA emphasized providing information and outreach to minority communities; encouraging minority participation in permit reviews; and considering impacts to minority communities in  environmental impact statements and federal air quality decisions. (See the earlier post for detail on the 1994 Federal Executive Order on environmental justice and the requirements of EPA rules.)  The January 12  EPA letter took the unusual path of recommending review of  both the general permit conditions and state rules to determine whether environmental standards should be changed to reduce impacts to minority communities.  EPA noted the Smithfield Agreement study and other research  identified practices that can minimize  impacts,  but are not required under current state rules.  Examples cited by EPA included: covering waste lagoons; limiting the time of day for land application of waste; eliminating some methods for handling dead animals.

Issued in the final days of the Obama administration, the EPA letter hints at a newly broad application of civil rights principles to state environmental policy decisions. The letter suggests  the Civil Rights Act may require state regulators to change environmental standards if existing standards do not adequately protect minority communities. Environmental regulations have traditionally been shaped by seemingly race-neutral factors  — health and ecological effects balanced by economic considerations. The Earth Justice complaint and EPA’s preliminary response question whether the result of the regulatory process has been race-neutral.   EPA provides little guidance to the state on the role race should play in environmental regulation beyond hinting that if the state can do more to reduce impacts to minority communities, it should. Perhaps the question in the background is this:  Can a  disproportionate impact on minority communities be a sign that the race/ethnicity of the people being affected influenced the state’s willingness to tolerate negative impacts?

What comes next?  Under the usual EPA process for environmental justice investigations, the state has an opportunity to respond to preliminary findings by either carrying out the EPA recommendations or suggesting a different response.   DEQ Secretary Michael Regan quickly indicated an intent to follow up on EPA’s concerns and work with stakeholders to reach a resolution. If the state does not satisfy EPA’s concerns and EPA makes a formal finding of discrimination, the ultimate penalty could be withdrawal of federal funds from DEQ.

In the meantime, EPA leadership has changed.    A week after EPA sent the January 12 letter, the Trump administration took office.   Budget cuts proposed by the Trump administration reportedly include elimination of EPA’s environmental justice program which provides grant funding and policy direction to environmental justice efforts. Although EPA would still  have an obligation to comply with the Civil Rights Act,  the budget proposal signals a lack of Trump administration concern about environmental justice concerns.   If that causes EPA to step back from environmental justice complaints, it  will likely be up to the state to decide whether and how to resolve these issues.

Pigs and The Civil Rights Act of 1964

March 7, 2017.  In one of his earliest actions as North Carolina’s Secretary of Environmental Quality, Michael Regan sent a  letter to the editor publicly responding to a U.S. Environmental Protection Agency (EPA)  “letter of concern” about N.C. swine farms.   EPA sent the letter as part of an ongoing investigation of a  2014 environmental justice complaint against the N.C. Department of Environmental Quality (DEQ)  under Title VI of the Civil Rights Act of 1964. The complaint filed by Earth Justice, the Rural Empowerment Association for Community Help (REACH) and the Waterkeeper Alliance argued that a state permit for swine waste systems discriminates against African-Americans, Latinos and Native Americans by allowing members of those minority communities to be disproportionately harmed by air and water pollution associated with the swine waste.

An attempt at mediation of the complaint failed in 2016. The break down in negotiations led  to a new allegation that DEQ violated federal rules against intimidating a person who has complained of discrimination.   In 2016,  EPA resumed active investigation of both complaints. (See this NC Policy Watch story for a helpful timeline of action on the complaint.) EPA’s January 12, 2017 letter of concern identifies gaps in the state’s environmental justice response and also recommends steps DEQ should take to resolve the complaint.

This is the first of two blog posts looking at the intersection of civil rights law and environmental protection programs. The first blog post will describe the legal basis for  the environmental justice movement and some of the practical challenges of applying civil rights law to environmental permitting decisions.  A later blog post will provide more detail on the Earth Justice/REACH/Waterkeeper Alliance  complaint and EPA’s recommendations.

The Civil Rights Act of 1964 and the environment.  Under Title VI of the Civil Rights Act of 1964, no person “can be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” based on race, color or national origin. (See 42 U.S.C. § 2000d.)  The anti-discrimination law applies to any state agency receiving federal grant funding, including DEQ programs to implement the Clean Air Act, Clean Water Act, Safe Drinking Water Act and other federal environmental laws.

Federal rules applying the Civil Rights Act to  EPA-funded agencies  (40 CFR Part 7) provide a little more detail, but focus on discrimination in employment, contracting and location of public infrastructure.  Those  nondiscrimination requirements mirror conditions on many other types of federal contracts and grants.  The rules also require state programs to designate a person to receive discrimination complaints and to provide a grievance procedure.

Over time, a movement developed to  give greater meaning to language in the Civil Rights Act  guaranteeing the “benefits” of federally funded environmental protection programs without regard to race, color or national origin. The environmental justice movement grew out of concern that minority communities had been denied the benefits of environmental protection in several ways, including:

♦ Disproportionate siting of facilities associated with environmental risk (such as  hazardous waste facilities)  in minority and low income communities.

♦ Greater exposure of minority residents to high levels of pollution and environmental contamination.

♦ Weak enforcement of environmental standards in minority and low income communities.

Over the last thirty years,  a number of studies have looked at the relationship between race,  income and risk of exposure to environmental harm. The National Institute of Environmental Health Services has published a bibliography of studies related to environmental justice that can be found here .

Environmental permitting as a civil rights issue.    Many histories of the environmental justice movement cite EPA’s permitting of a  hazardous waste landfill in a majority  African-American community in  North Carolina as an early environmental justice flashpoint. See: EPA’s environmental justice timeline and the federal Department of Energy’s brief  history of the environmental justice movement.  The 1982 construction of the Warren County landfill, built for disposal of PCB-contaminated soil,  highlighted a new civil rights question:  Do permit decisions made under racially neutral environmental standards still result in a greater pollution burden on minority and low income communities?   

The political and legal battle over the Warren County landfill raised two interconnected issues common to many environmental justice controversies: 1.  Was the decision to put the PCB landfill  in a community with a largely  minority population (greater than 60% African-American) influenced by race?  The concern was not that state officials had an affirmative intent to harm African-Americans, but that the state rejected more suitable sites to  put the landfill in a community where residents had little political power to resist. 2. Did the U.S. EPA permit for the landfill fail to provide adequate safeguards against environmental harm?

Immediately after construction of the Warren County landfill,  two members of Congress asked the General Accounting Office (GAO) to look at the  first question.  The GAO study of hazardous waste landfills in  eight southeastern states (including North Carolina)  found in part :

There are four offsite hazardous waste landfills in [the] eight States. Blacks make up the majority of the population in three of the four communities where the landfills are located. At least 26 percent of the population in all four communities have income below the poverty level and most of this population is Black.

Early efforts to consider disproportionate impacts to minority communities in environmental permitting.   An Executive Order and Memorandum on Environmental Justice issued by President Clinton in 1994 represents one of the first federal efforts to address environmental justice in permitting.  The goal of the Executive Order and memo, which directly applied only to federal agencies,  was to   “prevent…minority communities and low-income communities from being subject to disproportionately high and adverse environmental effects”. The memo directed federal agencies to:

  1. Include impacts to minority and low income communities as part of  environmental review.  Environmental impact statements prepared  under the National Environmental Policy Act (NEPA) should evaluate the human health, economic and social effects on minority  and low-income communities and require mitigation of significant impacts.
  2.  Reach out to the community.  During the environmental review, the federal agency should consult with the community about potential effects and mitigation measures and make meetings, documents and notices easily accessible.
  3. Consider air quality impacts of federal agency actions on minority and low-income communities.  EPA should  ensure that review of the air quality impacts of a  proposed federal action includes consideration of the  impact on minority and low-income communities. 
  4. Provide access to information.  Federal agencies should provide  minority and low income communities with  access to public information on  human health,  environmental planning, regulatory requirements and enforcement standards. 

In short, the executive order and memo focused on process —  outreach, information, analysis of impacts and mitigation.  It did not change any environmental permitting standards.

What does the Civil Rights Act of 1964 require of federally-funded state environmental permitting programs? EPA has struggled to provide clear guidance to the states on how to apply the Civil Rights Act of 1964 in state environmental permitting programs.  A 2014 EPA plan, Considering Environmental Justice in Permitting , set out a roadmap for considering environmental justice in federal and state permitting. EPA’s implementation plan proposed several years of additional work  with a goal of completing work on the guidance in 2017.

The challenges.  Addressing environmental justice concerns in permitting  has some basic challenges:

♦ Civil rights laws and environmental protection laws speak different languages. Civil rights law focuses on discrimination based on race, color or nationality;  environmental laws and rules set permitting standards based on public health and ecological impacts without regard to community demographics.  An environmental permitting standard may not always be effective, but on its face the standard applies the same way in wealthy subdivisions, poor neighborhoods, and low income communities.

♦ Permitting agencies rarely have the authority to decide where a proposed  facility will be located.  DEQ cannot decide that a swine farm or  landfill or hazardous waste storage facility would best be located here rather than there.  As the permitting agency, DEQ responds to a permit application that proposes a specific type of facility in a particular location. DEQ can deny the permit — but only if the project would violate  environmental standards in state law or rules and those standards do not make community demographics a  permitting criteria. Instead, the standards focus on environmental and public health impacts without regard to the nature of the community likely to be affected.

♦  Race-neutral factors like the availability of suitable land and land cost often drive the permit applicant’s site selection.  Large acreage at low cost often correlates to rural land, low income communities and a greater impact on minority populations.

What permitting programs can do. State environmental permitting programs can use the kind of outreach described in the Clinton memo to actively bring minority residents into the permitting process.  Many state environmental programs now also have permit criteria that include consideration of  the cumulative impacts of proposed and existing facilities  in the community.  That allows the permitting agency to look beyond the individual impact of a proposed facility and prevent environmental harm caused by clustering multiple  pollution sources in a minority or low income community.

Does the Civil Rights Act require more? The environmental justice  complaint about N.C. swine farms and EPA’s letter of concern suggest the state’s obligations may go further. More about that in the next post.