Environmental Legislation: Where Things Stand

July 8, 2013: Just coming off the Fourth of July holiday and an odd legislative week  may be a good time to check the status of some of the more important environmental bills.

Environmental legislation that — one way or the other — is done:

House Bill 488 (Regionalization of Public Utilities) transfers ownership of the Asheville water system to the Metropolitan Sewage District of Buncombe County. The City of Asheville strongly opposed the legislation, which provides no compensation to the city for transfer of assets associated with the water system. The city immediately sued to challenge the law and a superior court judge has issued an order  stopping  the transfer while the fight moves through the courts. There are lots of issues in play — including the constitutionality of the law and allegations that one of the bill sponsors has threatened Asheville with more retaliatory legislation if the lawsuit isn’t dropped.

House Bill 628 (Protect/Promote Locally Sourced Building Materials) was signed into law after a major rewrite in the Senate.  The  original House bill would have prohibited state building projects from seeking Leadership in Energy and Environmental Design (LEED) certification under Green Building Council standards.  The Senate rewrote the bill to allow construction of state projects under “green” building standards that  give credit for use of local building materials — which LEED standards do.  (Background on the LEED controversy and the Senate compromise language can be found here.) The Senate also added a new provision  calling  for study of the energy efficiency standards for state buildings that were adopted in 2007. The House agreed to the changes and the bill has become law.

House Bill 706 (Preserve Landfill Space) allows for on-site disposal of demolition debris from manufacturing facilities and decommissioned electric generating stations. The bill exempts disposal of these materials from landfill standards and allows the debris to be buried on site under environmental standards set in the bill. (Any hazardous waste in the debris must still be disposed of under standards set in state and federal hazardous waste rules.)

Senate Bill 638 (N.C. Farm Act of 2013) is significant for what it doesn’t do; the bill was signed into law without the controversial wetlands provision discussed in an earlier post.  The House removed a section of the Senate bill that eliminated state water quality permitting requirements for wetlands that do not fall under federal Clean Water Act permitting jurisdiction. The Senate accepted the change.

House Bill 298/Senate Bill 365  (Affordable and Reliable Energy Act) died for this session Both bills proposed to repeal the state law requiring major electric utilities to generate an increasing percentage of power from renewable energy sources (such as wind turbines and waste-to-energy facilities). Neither bill made it to a floor vote by the May 15 deadline for bills to pass at least one house of the General Assembly to stay alive for the session. Background on the renewable energy portfolio standard controversy can be found in an earlier post.

House Bill 983 (Fisheries Economic Development Act) died in the House without ever coming to a vote.  Commercial fishermen opposed the bill designating red drum, spotted sea trout and striped bass as coastal game fish because it  would have put the fish off-limits for fishermen using large nets and trawls.

Bills in conference to resolve differences between the House and the Senate:

House Bill 94 (Amend Environmental Laws): The Senate took a final vote last Wednesday on the Senate version of House Bill 94 (Amend Environmental Laws). The Senate added a number of entirely new sections to the bill that came over from the House. One of the most controversial new sections would allow oil and gas operations to withhold information on “trade secret” chemicals used in hydraulic fracturing  from the Department of Environment and Natural Resources unless the department needed the information to respond to an environmental or health emergency. See earlier discussion of the Senate’s intervention on behalf of the oil and gas industry  here.  The Senate also added a section limiting groundwater cleanup requirements at permitted waste disposal sites.  The groundwater cleanup language appears to respond to legal action by N.C. Sierra Club and the Waterkeepers Alliance over groundwater contamination at sites where Duke Energy and Progress Energy  disposed of coal ash. With only a few exceptions, the Senate language would make groundwater cleanup unnecessary as long as the contamination is confined to the property where the waste disposal site is located.

Senate Bill 76 (Domestic Energy Jobs Act):  The Senate bill made a number of changes to the 2012 law that set the stage for adoption of rules on hydraulic fracturing. One of the most controversial sections of the bill would repeal a longstanding state law that prohibits underground injection of waste. The Senate bill also repeals a  requirement that agents engaged in the acquisition or leasing of land for energy development must register with the Department of Environment and Natural Resources. The House made significant changes to the Senate bill; an earlier post talks about the differences between the House and the Senate. The bill has been in conference  since June 19.

Bills approved by one chamber of the legislature and waiting for action in the other:

House Bill 74 (Periodic Review and Expiration of Rules) passed the House and is sitting in the Senate Rules Committee. As described here, the bill requires state agencies to review and readopt existing regulations or  the rules automatically expire.

House Bill 300 (Cities/Public Trust Rights) passed the House and has been sent to the Senate State and Local Government Committee. The bill would allow coastal cities to take action  to address nuisance conditions on the public trust beach. For background on the lawsuit that led to the legislation, see this post.

House Bill 938 (Improve Wetlands Mitigation Programs) legislatively sets mitigation requirements for impacts to isolated wetlands and intermittent streams, overriding mitigation rules adopted by the state’s Environmental Management Commission. The bill passed the House and is waiting for a hearing in the Senate’s Agriculture and Environment Committee.

House Bill 1011 (Government Reorganization and Efficiency Act)  has  the House proposals for reorganization of boards and commissions, including changes in appointments to the Environmental Management Commission, Coastal Resources Commission and Wildlife Resources Commission. The House  passed this bill after the original board and commission reorganization bill (Senate Bill 10) died when the House refused to accept the compromise bill negotiated by House and Senate conferees.  House Bill 1011 is being held in the Senate Rules Committee; in the meantime, the Senate put its changes to Environmental Management Commission and Coastal Resources Commission appointments in the Senate budget bill. The House and Senate are also in conference over different budget bills.

Senate Bill 151 (Coastal Policy Reform Act) makes a number of changes to fisheries laws; includes a section (similar to House Bill 300) that allows coastal cities to address nuisance conditions on the public trust beach; and amends a 2011  law allowing limited use of terminal groin structures for erosion control on inlet shorelines. The Senate  bill eliminates the existing cap on the number of terminal groin structures that  can  be permitted and weakens some of the permitting requirements. This is another issue with a long history.  For about  forty years, state environmental rules completely prohibited use of hard erosion control structures like groins, jetties and seawalls on the state’s ocean and inlet shorelines. The General Assembly opened the door to construction of terminal groins on inlet shorelines in 2011 legislation after a  contentious legislative battle. The 2011 legislation allowed DENR to issue permits for no more than four terminal groins as part of a pilot project and put strict conditions on groin construction. The Senate would remove any restriction on the number of terminal groins and also repeal some of the permitting standards enacted just two years ago. The House received the Senate bill on May 16 and referred it to the House Environment Committee, which has not yet brought the bill up for discussion.

Senate Bill 328 (Solid Waste Reform Act of 2013) passed the Senate and has gone over to the House. The bill  repeals  a number of  landfill siting and construction standards adopted by the General Assembly  in 2007 following a study of landfill permitting. An earlier post described the Senate’s proposed changes. The bill  has been referred to the House Environment Committee and then to the House Finance Committee.

Senate Bill 341 (Amend Interbasin Transfer Law) simplifies approval of some new interbasin transfers (generally in the coastal area) and modifications to  existing interbasin transfers. The House received the bill from the Senate on May 2; the House Environment Committee has not yet brought the bill up for discussion.

Senate Bill 515 (Jordan Lake Water Quality Act) repeals water quality rules designed to reduce nutrient pollution in the Jordan Lake reservoir and calls for a legislative study. A short version of the long history of the Jordan Lake rules can be found here.  The House received the bill on May 16 and referred the bill to the House Environment Committee; the committee has not yet scheduled the bill for discussion.

Senate Bill 612 (Regulatory Reform Act of 2013) follows up on 2012 legislation designed to make rulemaking (and particularly environmental rulemaking) more difficult. The bill requires state environmental agencies to rewrite state rules that  are  more strict than corresponding federal rules. An earlier post talks about the possible result. Senate Bill 612 would also prevent local governments from adopting ordinances that are more strict than state environmental rules — with some of the same unintended consequences.   Section 3 of Senate Bill 612  limits requirements for groundwater cleanup at permitted waste disposal sites. The House received the bill from the Senate on May 6, but has not yet  brought the bill up in the House Environment Committee. In the meantime,  the Senate  added the groundwater cleanup  language to House Bill 94,  which is now in conference to resolve  differences between the House and Senate versions.

Cautionary Note: To quote Yogi Berra,  “It ain’t over ’till it’s over”. So the fact that a controversial   proposal appears to have died with a bill that didn’t make cross-over or has been removed from a bill that went on to be adopted does not mean that it  won’t appear again. Sometimes it will appear more than once — in the budget, in another bill, or possibly in both — and  “it’s deja vu all over again”. (Yogi one more time.)

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