Limiting Local Environmental Ordinances

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.