Earlier posts here, here, and here talked about regulatory reform in North Carolina and the impact on state environmental standards. In 2013, a Senate regulatory reform bill (Senate Bill 112) also proposed to significantly limit local government authority to adopt environmental ordinances. Although Senate Bill 112 did not pass the House, the Regulatory Reform Act of 2013 (Session Law 2013-413) effectively put a one-year moratorium on adoption of local environmental ordinances to allow time for a legislative study. The bill directed the General Assembly’s Environmental Review Commission (ERC) to study:
“the circumstances under which cities and counties should be authorized to enact ordinances (i) that regulate a field that is also regulated by a State or federal statute enforced by an environmental agency or that regulate a field that is also regulated by a rule adopted by an environmental agency and (ii) that are more stringent than the State or federal statute or State rule.”
Existing State Limits on Local Authority. In North Carolina, cities and counties only have the authority granted to them by state law. But even where the General Assembly has clearly given local governments authority to act, there are existing limits on exercise of local regulatory authority. For example, local ordinances must be consistent with state law. Cities and counties have no authority to enforce an ordinance that requires an action that would be illegal under state law or make compliance with state law difficult. The reverse is also true — a local ordinance cannot make an act unlawful if state law clearly makes it lawful. But “consistent” does not mean identical and many state laws allow local governments to adopt ordinances that go beyond minimum state standards.
The General Assembly can also claim the exclusive authority to regulate a particular subject at the state level. The state expressly preempts local regulation by adopting legislation that clearly prohibits or limits adoption of local ordinances on the same subject. For example, N.C. General Statute 130A-293 prohibits cities and counties from adopting ordinances regulating transportation, storage and disposal of hazardous waste or prohibiting construction of hazardous waste facilities. The same statute, however, allows local governments to apply zoning and land use ordinances to hazardous waste facilities to the same extent those ordinances apply to other land uses. A general zoning or land use ordinance will not be preempted under the law unless DENR finds that the ordinance would prohibit construction of a hazardous waste facility needed to “serve the interests of the citizens of the State as a whole”. The law preempts some local authority, but attempts to strike a balance between the state’s need for hazardous waste facilities and local land use decisions.
Courts most often find that the state has implicitly preempted local government authority on a particular subject when a comprehensive state regulatory scheme forecloses the possibility of local standards. In 2001, the N.C. Court of Appeals ruled that Chatham County could not set standards for siting swine farms because detailed state standards for siting large animal operations (including swine farms) indicated an intent to have a single, consistent set of state standards. See Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455 (N.C. App., 2001).
In short, the General Assembly can preempt local regulation of a particular subject by saying so outright or by adopting a comprehensive state regulatory program that crowds out local regulation. Whether express or implied, preemption has been directed to individual regulatory issues and only when necessary because of some overriding state interest. That may be the need for uniform regulation or to prevent local governments from excluding unpopular land uses that serve a necessary purpose.
Changing the balance between state and local authority. The approach proposed in Senate Bill 112 would completely change the balance between state and local decision-making. Instead of assuming local ordinances can reflect local conditions and values, Senate Bill 112 would only allow a local government to go beyond minimum federal and state environmental standards in extraordinary circumstances. The circumstances listed in the bill included unique local conditions; a serious threat to health, safety and welfare; a requirement of federal or state law; and ordinances needed to qualify for discounted federal flood insurance rates. But even those exceptions would require approval by a super-majority of the local governing board (3/4 members) and by the Department of Environment and Natural Resources.
The risk of gaps in nuisance, environmental and health standards. Since federal, state and local programs don’t have the same scope, an overly broad preemption of local environmental ordinances would leave significant gaps:
Some of the most fundamental responsibilities of local government predate state and federal environmental laws. Those laws have been built on the foundation of local nuisance, public health and land use ordinances — not to replace them. Local governments have long had the responsibility to address nuisance conditions and regulate land use. State and federal environmental standards came later and while those standards sometimes touch on the same subjects, they do not substitute for local zoning, subdivision, nuisance, and health ordinances. To use one example cited in legislative discussions last session — a city stormwater ordinance to control nuisance flooding doesn’t become unnecessary because the state has adopted stormwater rules to protect water quality. Preempting local ordinances without having a comprehensive set of state standards to put in their place could leave significant holes in protection of public health, safety and the environment.
Local governments need ordinances to manage local water, sewer, stormwater and waste disposal infrastructure. To give one example, state and federal environmental rules regulate sewer systems and wastewater treatment plants to prevent water pollution, but don’t address grease disposal that may cause a sewer line to become blocked. A local ordinance regulating grease disposal could easily be considered “more stringent” than federal and state standards. The General Assembly will also find that many local governments have ordinances on waste collection, waste disposal and connection to local water and sewer systems. Although federal and state rules touch on some aspects of those infrastructure systems, many local ordinances have no parallel in federal or state rules — because federal and state agencies have no direct responsibility for providing those services and managing the infrastructure. Under the approach proposed in Senate Bill 112, local ordinances needed for operation and maintenance of environmental infrastructure could be prohibited unless justified under one of the exceptions in the bill and approved by the state.
Different communities have different values in terms of land use and development activity. Many local development ordinances could be considered to overlap federal and state “environmental” standards. Overly broad preemption of local standards for land use and development activity would eliminate the ability of citizens to shape their own community. If local officials act contrary to the wishes of their constituents, they can be voted out of office. It will be much more difficult for the residents of Wilmington, Cary, Charlotte and Siler City to have a say in how their communities develop if much of that power shifts to officials in Raleigh and Washington D.C.
What will be the guiding principle for further limiting local authority? Given the different roles of local, state and federal regulations, very broad preemption of more stringent local environmental ordinances will create significant controversy — controversy about what it means for a local ordinance to be “more stringent”; controversy about what should be considered an “environmental” ordinance; and controversy about justification of more stringent local standards. What seems to be missing from the debate so far is some new guiding principle for limiting local authority that could be used to answer those questions. Until now, the General Assembly has shaped local authority through laws granting specific powers to cities and counties and by preempting local authority when necessary to promote some broader state interest. If that set of operating principles changes, some new principle will need to be stated.
Note: In January, the full Environmental Review Commission heard a brief discussion of the issue. On February 17, 2014, the ERC’s City and County Ordinance Working Group will hear public comment in a meeting at 3:30 in Room 414 of the Legislative Office Building.