The NC Attorney General’s Office and Environmental Protection

August 14, 2017. The final budget adopted by the N.C. General Assembly on June 22  included a surprise reduction of just over $10 million in the budget for the state Attorney General’s Office (AGO).  Legislative leaders added the cut during  final budget negotiations between the two chambers. The budget bill  limits the Attorney General’s ability to meet the “management flexibility reduction” in a way that will require all of the cuts to be taken from administrative and legal services. The Attorney General’s Office has only 24 administrative positions, so most of the reduction will have to be met by reducing legal services — the lawyers and paralegals who represent state agencies and handle appeals of criminal convictions on behalf of local district attorneys.  Earlier this month, Attorney General Josh Stein announced that the AGO will meet $7 million of the $10 million cut by eliminating 45 positions; shifting additional legal services positions to funding provided by the state agencies the attorneys represent; and handling fewer appeals of criminal convictions. Stein has said that he cannot meet the remaining $3 million in budget reductions and asked the legislature to restore that amount to the AGO budget.

House and Senate leaders responded that the Attorney General has sufficient resources to meet his constitutional and legal responsibilities.   In an August 3  Associated Press story, Emery Dalesio reported that House Speaker Tim Moore suggested the legislature may shift responsibility for civil cases out of the AG’s Office :

House Speaker Tim Moore said lawmakers are considering legislation to let agencies hire their own in-house lawyers for civil matters, shifting that work from Stein’s office. But Stein has enough money to handle criminal cases, Moore said. “He has adequate resources, very adequate resources to take care of those issues,” the Republican from Kings Mountain said.

A look at what this means for environmental protection —

Background for the new budget cuts:  Under state law (G.S. 114-2), the Attorney General has a duty to represent state agencies in both civil and criminal cases.  Environmental protection programs rely heavily on civil enforcement; only a very small percentage of cases can be referred for criminal prosecution because of specific aggravating factors.  The 45 positions already identified for elimination by AG Stein include three positions in the Environmental Division of the AGO —  two paralegals and a water quality attorney.  If the legislature refuses to give any relief on the remaining $3 million in cuts, additional positions in the Environmental Division may be lost.  All of these new cuts  come on top of significant reductions over the previous four years. Between 2012 and the end of 2016,  the Environmental Division of the AGO lost 11 lawyer positions — seven as a result of legislative action and four contract positions DEQ did not renew in 2016.

The kind of civil cases the Attorney General’s Office handles for environmental agencies:

♦   Civil penalty collections.  Environmental agencies rely on civil penalty assessments as the most common enforcement response to violations ranging from illegal dumping and improper handling of hazardous waste to unpermitted air pollution sources. The AGO represents DEQ in civil actions to collect unpaid penalties.  Lack of an effective collection program undermines environmental compliance, sending a signal that there may be no real penalty for violation.  An example of a civil penalty case:

— In 2007, DEQ’s  Division of Waste Management assessed a large penalty ($553,225) against EQ Industrial Services for violations preceding and possibly contributing to an explosion and fire at the company’s hazardous waste handling facility in Apex  that forced the evacuation of 17,000 people.

♦  Civil lawsuits to stop an ongoing environmental violation; require cleanup of environmental contamination; or to seek reimbursement of state cleanup costs.  Examples:

— The 2013 lawsuit against Duke Energy to require the company to take action to prevent groundwater contamination and unpermitted discharges from coal ash stored at the Riverbend Steam Station in Gaston County and several other coal-fired power plants.

— A 2016 consent agreement with Flextronics International requiring the company to fully investigate the extent of groundwater contamination affecting residential wells in a Wake Forest subdivision and do any necessary environmental remediation.  The small circuit board assembly company that caused the solvent contamination had been sold and the original owners had no assets.  AGO lawyers identified Flextronics International as another legally responsible party based on its acquisition of the smaller company and its environmental liabilities.

♦  Civil lawsuits challenging state environmental policies and individual permitting decisions.   Examples:

— A  lawsuit by the State of South Carolina asking the federal courts to allocate water in the Catawba River and Yadkin River between the two states. The lawsuit responded to N.C. decisions on water use within the state, but affecting downstream flows to S.C.

—  The conflict between the State of North Carolina and Alcoa over rights to the bed of the Yadkin River. The case came out of Alcoa’s application for a state water quality approval necessary to renew the company’s  hydropower license on the Yadkin.

— A lawsuit by oceanfront property owners seeking the closure of beach access walkways near their homes and claiming the right to exclude the public from the dry sand beach seaward of their property.

The bottom line. Loss of legal representation in civil cases would  weaken the state’s ability to  protect public health and natural resources critical to the state’s economy. Loss of the legal expertise necessary to identify and hold responsible  the people who cause  environmental contamination shifts the cost of contamination to taxpayers.  In the absence of an alternative — and funded — plan to provide an equivalent level of legal services, the reduction in the AGO’s budget could significantly undermine environmental protection.

One thought on “The NC Attorney General’s Office and Environmental Protection

  1. DOUGLAS BLATNY

    If we don’t spend the funding to protect environment including clean air and water now, We will pay later with rising health care. Loss of Recreational opportunities and loss of the public trust. Penny wise pound foolish.

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