Category Archives: Air

Senate Bill 10 and Federal Conflict of Interest Laws

A bit more about Senate Bill 10. Both the Clean Air Act and the Clean Water Act   have conflict of interest standards  for members of state boards and commissions with  authority to issue federal permits. To have  — and keep —  delegated permitting authority, North Carolina must meet those standards. North Carolina law gives the Environmental Management Commission (EMC) authority to issue federal water quality and air quality permits. Although the EMC has delegated much of its permitting authority to Department of Environment and Natural Resources (DENR) staff,  the EMC still makes decisions on major variances, declaratory rulings, civil penalty remission requests and final decisions in some administrative  appeals.

Senate Bill 10 removes language in N.C. General Statute 143B-283(c) that has allowed the EMC to meet federal conflict of interest standards. The sentence to be repealed closely tracks Clean Air Act language requiring any state commission that approves permits or enforcement orders to have a majority of members who “represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under [the delegated air quality permitting program]”.   Under G.S. 143B-283(c),   at least nine Environmental Management Commission members must not “derive any significant portion of their income from persons subject to permits or enforcement orders under [the water and air quality statutes]”.  (When it was adopted, nine members represented a majority of the EMC; more about that below.) Although the Clean Water Act’s conflict of interest  language is worded differently, EPA has also accepted G.S. 143B-283(c) as meeting requirements for delegation of  water quality permitting authority.

Since the EMC expanded from 17 members to 19 members in 2001,  nine no longer represents a majority of the commission.  EPA picked up on the math problem more than a year ago and began questioning whether North Carolina’s delegated permitting programs  still met federal conflict of interest standards. The question first came up in connection with the air quality program and DENR’s Division of Air Quality has addressed the issue in recent implementation plans for federal air quality standards. DENR seems to have satisfied EPA by making sure that permit-related decisions go to EMC committees that have a “public interest” majority at the committee level.

Complete repeal of the EMC conflict of interest language would force EPA to look at the issue again  under circumstances that make inconsistency with federal standards more difficult to resolve.  The EMC appointment criteria in Senate Bill 10 no longer assure that even EMC committees could have a “public interest” majority.

 

Senate Bill 10: The Environment Commissions

The North Carolina  Senate is considering a bill that would significantly change appointments to several influential state boards and commissions. This post focuses on two commissions affected by Senate Bill 10 — the Coastal Resources Commission (CRC) and the Environmental Management Commission (EMC). (This analysis is based on Edition 3 of the bill.)

The bill  immediately  gives the new governor and legislative leadership complete control over  the membership of these commissions by causing the terms of current members to end as soon as the bill becomes law — even though months or years may remain on each member’s statutory  term of office.   Senate Bill 10 also amends the appointment statutes for  the CRC and the EMC to reduce the total number of commission members;  increase the number  appointed by legislative leadership (reducing the governor’s influence);  and change appointment criteria. More detail on changes proposed for each commission below.

The Coastal Resources Commission (CRC) has  authority to adopt rules for development in environmentally sensitive areas of the twenty coastal counties.  Changes proposed in Senate Bill 10 would reduce the number of CRC members from 15 to 11 and for the first time divide appointments among the Governor, President pro tem of the Senate and Speaker of  the House. (Currently all CRC members are appointed by the Governor.)  The bill also changes the criteria for appointing CRC members by:

• Increasing the number of “at-large” members ( who do not have to meet specific appointment criteria).

• Eliminating seats  now earmarked for members with knowledge or experience in coastal fisheries, agriculture, forestry, marine ecology, conservation, and finance.

• Removing the requirement that a super-majority of commission members (13 of the current 15 members) must live in one of the coastal counties.  Under Senate Bill 10, none of the CRC members would have to actually  live in  a coastal county.

• Designating the six seats that have specific appointment criteria for one representative of a coastal business; two representatives of coastal land owners or developers; one  member with experience in a coastal local government; and two members with a background in either coastal engineering or coastal science.

The new appointment criteria raise several concerns. The Coastal Resources Commission regulates development in the twenty coastal counties, but Senate Bill 10 would no longer  guarantee representation of coastal residents on the commission.  The commission would lose scientific expertise, but even more important it would lose the (nonpartisan) political breadth needed to create consensus on controversial coastal policies.   Under the new appointment criteria, it would be possible to have a CRC composed entirely of members representing  business and development interests, leaving participants in other parts of the coastal economy (such as fisheries, forestry, and agriculture) without  influence on major coastal policy decisions.

The bill also changes the membership of the Coastal Resources Advisory Council, a non-regulatory body  created to advise the Coastal Resources Commission.  Most  members of the Advisory Council represent local governments; each coastal county has a representative selected by the county commissioners and other members represent coastal cities or multi-county planning districts.  Senate Bill 10  reduces the total number of Advisory Council members from 45 to 20 and does not set aside any seats for local government representatives.  The change could  leave coastal  local governments with much less influence over coastal policy.

The Environmental Management Commission has responsibility for adopting state air quality, water quality, and water resource standards. Senate Bill 10 reduces the total number of EMC members from 19 to 13. The governor and legislative leaders already share authority to appoint EMC members, but Senate Bill 10 would lessen the governor’s influence on the EMC relative to the General Assembly by reducing the number of governor’s appointees to seven. Legislative leaders would continue to appoint six members,  representing nearly half of the smaller EMC.

The bill  makes significant changes in appointment criteria for EMC members by eliminating seats now earmarked for members with experience in public health, fish and wildlife conservation, groundwater hydrology, local government, and air pollution.  The new criteria proposed for governors appointments would:

• Retain a seat on the EMC for a physician, but no longer require the physician member to have “specialized training and experience in the health effects of environmental pollution”.

• Require the governor to choose between having  members with experience in hydrology,   water pollution control or the effects of water pollution.

• Require the governor to choose between having a  member with expertise in ecology or a member with expertise in air pollution.

• Reduce the three seats on the EMC for members of the public at large who have “an interest in water and air pollution control” to  one at-large member (without the qualifying language).

The  proposed changes in appointment criteria could  result in a commission without  expertise  in critical areas.  In several instances, the governor will be required  to decide which of several areas of environmental expertise to exclude in making appointments.  For example, choices forced by the new  criteria could leave  the  EMC   without  expertise  in air pollution or air pollution control – one of the most complicated and technically demanding subjects that the EMC has to address.   Knowledge of hydrology, water quality,  ecology and air pollution can be found on the DENR staff, but the EMC would lose the independent perspective provided by commissioners with expertise in each of those areas.

By changing EMC appointments, Senate Bill 10 will also indirectly affect the makeup of other environmental commissions that have seats designated for a member of the EMC. Those include the Mining and Energy Commission and the Sedimentation Pollution Control Commission.

Finally, Senate Bill 10 repeals language requiring that at least nine EMC members must be people who do not derive significant income from  activities regulated by the commission.  The language in G.S. 143B-283(c) exists  in part to meet federal requirements for  delegated permitting programs  under the  Clean Water Act and Clean Air Act.   Complete repeal of the language may cause EPA to question  North Carolina compliance  with federal rules governing those  delegated  programs. More detail about this issue later.