NC’s GOP uses state budget to overhaul environment rules

NC’s GOP uses state budget to overhaul environment rules


The 2023 North Carolina budget prevents local governments from banning or taxing plastic bags, Styrofoam and other retail containers. Here, volunteer Heath Walajtys collects Styrofoam and other trash as members of the Haw River Assembly and volunteers clean out a trash trap on the Third Fork Creek in Durham, N.C., Saturday, May 25, 2024.

The 2023 North Carolina budget prevents local governments from banning or taxing plastic bags, Styrofoam and other retail containers. Here, volunteer Heath Walajtys collects Styrofoam and other trash as members of the Haw River Assembly and volunteers clean out a trash trap on the Third Fork Creek in Durham, N.C., Saturday, May 25, 2024.

ehyman@newsobserver.com

Erin Kowalsky was seated above a pile of soggy trash, and she was disgusted.

The UNC-Chapel Hill graduate student spent a Saturday morning in May volunteering with the Haw River Assembly to collect and count litter from Durham’s Third Fork Creek.

At her feet sat a pile of partially broken down plastic foam containers bearing familiar names like Cook Out, Waffle House and Zaxby’s, all of them slimy from the creek. The plastic foam breaks down into smaller pieces in sunlight, so what had once been cups or food trays had in almost every case sloughed into smaller flakes.

“I have never been so horrified in my life,” Kowalsky said, adding: “They need to outlaw Styrofoam.”

But as of last fall, a local government in North Carolina cannot take such measures due to language GOP leaders tucked into the state budget.

Just days before liberal Asheville and Durham were to consider regulating plastic bags and food containers in September, the N.C. General Assembly stepped in. Its 625-page state budget included 50 lines barring any North Carolina city or county from prohibiting, taxing or otherwise regulating retail packaging, including banning Styrofoam food containers.

“We were pretty blindsided when this provision came through. There was no outreach, no effort at communication and no committee hearings at which the provision was discussed,” said Michelle Nowlin, co-director of Duke University’s Environmental Law and Policy Clinic, who was helping a Durham nonprofit lobby for the regulations.

Preventing local governments from reducing plastic waste is just one recent example of the many ways Republican lawmakers have used the state budget, theoretically a fiscal document, to weaken existing environmental regulations or prevent more.

Since taking power in 2011, GOP leaders have introduced dozens of environmental provisions in state budgets, rather than standalone bills. That includes 2023 provisions preventing North Carolina from joining a cap-and-trade program that could have limited greenhouse gasses released by the state’s power plants and stymieing Gov. Roy Cooper’s efforts to shift trucks across the state from diesel fuel to electric power.

Lawmakers often cast these moves as necessary to protect the state’s business environment from burdensome regulations.

Legislative Republicans respect the environment but are also trying to find a balance between protecting it and helping businesses statewide, Sen. Norm Sanderson, a Pamlico County Republican, told The News & Observer.

“We’ve been very successful at doing that,” Sanderson said. “Some people don’t agree with us, with what we’ve done; they consider that we’ve rolled back way too much stuff, but I think only time will tell.”

Environmental groups say the impacts of such policies can be found in puffs of black smoke from trucks on the state’s highways, in plastic and Styrofoam floating in its waterways and in thousands of acres of wetlands now open for development.

Volunteer Jo Buehrer wades into the Third Fork Creek to collect trash as members of the Haw River Assembly and volunteers empty a trash trap in Durham, N.C., Saturday, May 25, 2024. Styrofoam is far and away the most common item found in the trash trap.
Volunteer Jo Buehrer wades into the Third Fork Creek to collect trash as members of the Haw River Assembly and volunteers empty a trash trap in Durham, N.C., Saturday, May 25, 2024. Styrofoam is far and away the most common item found in the trash trap. Ethan Hyman ehyman@newsobserver.com

Hardison Amendments

Upon taking control of the General Assembly in 2011 for the first time since Reconstruction, Republican leaders used their first budget to re-shape the state’s environmental agency and put limits on its power.

Key to that effort was reviving so-called Hardison Amendments.

In the 1970s, the then Democrat-led General Assembly passed a set of rules cast as pro-business and championed by Sen. Harold Hardison. When the state and U.S. governments are regulating the same thing, they directed, this state could not impose stricter rules than the federal government had in place.

Those rules were fully repealed by 1995 by Democratically controlled legislatures, allowing North Carolina to enact regulation that exceeded federal rules.

But GOP leaders restored similar limits with their 2011 budget for several agencies, including what’s now the N.C. Department of Environmental Quality.

“It is the intent of the General Assembly that the standards and limitations adopted by the Department shall be no more restrictive than the most nearly applicable federal standards and limitations,” the 2011 budget said.

Those few words have had big influence on state policy.

GOP legislators cited the law last year when reducing wetland protections across the state.

Shortly after the U.S. Supreme Court issued a 2023 ruling significantly reducing wetlands protected by federal agencies, North Carolina’s GOP lawmakers moved to bring the state’s rule in line with the decision. Sen. Brent Jackson, a Sampson County Republican, referenced the Hardison Amendment when discussing the bill, saying North Carolina has “an obligation to comply with federal laws and regulations.”

An Environmental Defense Fund analysis found that the way federal agencies interpret the nuances of the Supreme Court’s decision could mean anywhere between 490,000 and 3.6 million acres of North Carolina’s wetlands could be opened to development.

Richard Whisnant, who in the 1990s served as the state’s environmental regulatory agency’s top lawyer, once called the Hardison Amendments a “quick and dirty legislative shut-off valve” for regulation.

Effectively limiting new environmental rules to those already approved by federal agencies makes it difficult for DEQ to regulate based on the specific environmental threats people living here face, says Robin Smith, a former state assistant environment secretary and chair of the N.C. Environmental Management Commission.

“There’s always been, and intended to be, a strong state role in environmental protection, and I think that particular provision would lead many people to believe that’s not the case,” Smith said.

A law passed in the 2011 North Carolina budget says that state regulators cannot make air, water and other environmental rules that are stricter than those passed by the federal government. Here, Glenn Woodward, a laboratory analyst with Raleigh Water, prepares to collect monthly samples from Falls Lake on Tuesday, May 28, 2024.
A law passed in the 2011 North Carolina budget says that state regulators cannot make air, water and other environmental rules that are stricter than those passed by the federal government. Here, Glenn Woodward, a laboratory analyst with Raleigh Water, prepares to collect monthly samples from Falls Lake on Tuesday, May 28, 2024. Kaitlin McKeown kmckeown@newsobserver.com

Taking aim at forever-chemical regulation

In 2017, the public learned the Fayetteville Works plant owned by DuPont and then spin-off company Chemours had for decades discharged tough-to-remove industrial chemicals into the Cape Fear River, a drinking water supply for hundreds of thousands of Wilmington-area residents.

The substances are called forever chemicals because they can persist in the environment and, sometimes, in people’s bodies. In addition to industrial waste, Different kinds of per- and polyfluoroalkyl substances are found in firefighting foam, non-stick pans and many consumer goods.

Exposure to some may negatively affect growth and learning in children, hinder women’s fertility, alter thyroid function, raise cholesterol levels and increase risk of some cancers — including testicular and kidney cancers, according to state health officials.

Since 2017, state environmental officials have been grinding their way toward regulating these per- and polyfluoroalkyl substances, or PFAS. While scientists know of thousands, DEQ identified eight present here that it intended to regulate in ground- and surface water.

The Hardison Amendment has been invoked in an effort to delay proposed state PFAS rules in groundwater and drinking water. Here, Debra Stewart shows signs showing her dog, Missy, and horse, Whisper, with their PFAS levels.
The Hardison Amendment has been invoked in an effort to delay proposed state PFAS rules in groundwater and drinking water. Here, Debra Stewart shows signs showing her dog, Missy, and horse, Whisper, with their PFAS levels. Travis Long tlong@newsobserver.com

But in April, the N.C. Chamber, the state’s powerful business interest group, urged the N.C. Environmental Management Commission to slow down and conduct more research before approving rules for the substances.

Much of Chamber President Gary Salamido’s argument to delay setting new limits focused on new drinking water rules the U.S. Environmental Protection Agency finalized this year for six of the eight PFAS the state is considering limiting.

He also pointed to the renewed Hardison Amendment, writing that regulators need to consider whether they are going further than the EPA’s rules.

“Further, in conformance with the Hardison amendment, NC DEQ should align their scope of consideration to be consistent with the six standards proposed by the USEPA on 10 April 2024,” Salamido wrote.

The federal government has left regulation of groundwater, in particular, to state governments, said Geoff Gisler, a Southern Environmental Law Center senior attorney.

So invoking the Hardison Amendment to limit groundwater regulation is difficult to understand because there is not a federal rule against which to compare the state’s proposal.

“The idea that the state would be precluded from adopting groundwater standards because of the Hardison Amendment just doesn’t make any sense,” Gisler said.

And time is of the essence. DEQ has found elevated levels of forever chemicals in wells that supply water to more than 9,400 homes around and downstream of Chemours’ Fayetteville Works plant.

‘Hidden gems’ in the budget

North Carolina is one of only a handful of states whose budget documents also include policy, the National Conference of State Legislatures has told The News & Observer.

It’s virtually impossible to lobby against policy changes — like the retail containers provision — inserted in a final budget bill, environmental advocates say.

That’s due to the sheer volume of material being considered and negotiations that have already taken place before the final version is made public. The special provisions also mean that policy like the retail container preemption can be slipped into the final version without public debate.

“Once that process has gotten so far along, when you find those little hidden gems in the budget there’s not an opportunity to discuss it publicly, there’s not an opportunity for negotiation. There’s just their way or the highway,” Nowlin said.

Most recent budgets have been passed via conference report, a legislative maneuver in which select members of both chambers negotiate the final version of the bill behind closed doors.

Legislative rules typically don’t allow amendments to a conference report once it has been filed. Legislators can voice opposition to certain parts of it, but they can’t try to change it. Their only choice is to vote yes or no.

Every lawmaker makes compromises when voting for the budget, said Sanderson, the Pamlico County Republican.

Legislators will always “find something that’s at odds with how you feel about things,” Sanderson said. “But sometimes you have to weigh, for the long-term, is this worth setting that aside for a few minutes in order to get this done.”

Greenhouse gasses and electric trucks

The 2023 state budget grounded two efforts to limit air pollution in North Carolina, banning state agencies from setting requirements for the sale or purchase of zero-emission vehicles and from requiring that electric utilities join cap-and-trade programs.

The Town of Cary was North Carolina’s first municipality to order a new line of electric garbage trucks from Greensboro-based Mack Trucks..
The Town of Cary was North Carolina’s first municipality to order a new line of electric garbage trucks from Greensboro-based Mack Trucks.. Mack Trucks

Those included a Cooper-backed rule that would have phased out sales of gas and diesel trucks over many years. Another measure was from environmental groups that pushed North Carolina to join a regional carbon cap-and-trade program to control emissions from electricity generation.

Trucks heavier than 8,500 pounds — including box trucks, delivery trucks and dump trucks — make up about 3% of North Carolina’s registered vehicles. But they emit 32% of health-threatening particulate matter from the state’s vehicles and 26% of nitrogen oxides, which form smog, Cooper’s office said in a release.

Many Republicans and business leaders opposed both, Rep. Dean Arp, a Union County Republican and a House budget writer, told The N&O. The proposals are effectively carbon taxes, Arp said, which is part of why language forbidding them was included in last year’s budget bill.

“It deals with the financial economic direction and spending practices of the state,” Arp said. “It’s hard to not draw a connection to the budget.”

Of the two, the trucks rule was more advanced.

Cooper in October 2022 directed DEQ to craft a rule that would have started ramping up manufacturer sales targets for zero-emissions vehicles in 2026. By 2035, between 40 and 75% of North Carolina truck sales would have been zero emissions depending on the vehicle’s weight. Manufacturers could meet the mandate by selling electric vehicles, plug-in hybrids or, potentially, hydrogen-powered vehicles.

“It would have cemented our status as a manufacturing hub, a medium and heavy-duty vehicle manufacturing hub. What that rule would have done is it would have attracted investments in our state,” Rep. Pricey Harrison, a Guilford County Democrat, said while debating the 2023 budget.

Implementing the Advanced Clean Trucks Rule would result in a reduction of about 3,300 tons of nitrogen oxides annually by 2030 and 27,500 tons annually by 2050, analysts from RTI International found in April 2022. They also found that levels of small particulate matter would decline by about 54 tons annually in 2030 and 399 tons annually in 2050.

That air pollution reduction would result in cumulative health benefits worth between $34.4 and $71.3 billion by reducing emergency room visits for asthma, lost workdays and non-fatal heart attacks, RTI analysts found.

An aerial composite view of the Marshall Steam Station, a coal power plant owned by Duke Energy situated near Lake Norman in Sherrills Ford, N.C. Tuesday, July 26, 2022.
An aerial composite view of the Marshall Steam Station, a coal power plant owned by Duke Energy situated near Lake Norman in Sherrills Ford, N.C. Tuesday, July 26, 2022. Arthur H. Trickett-Wile atrickett-wile@charlotteobserver.com

No cap-and-trade participation, either

The cap-and-trade initiative would have seenNorth Carolina join 11 other states in the Regional Greenhouse Gas Initiative, whose members limit carbon dioxide emissions from electrical generation in their states.

The goal was to impose a financial incentive on utilities to develop carbon-free power generation. Utilities would be required to buy allowances at an auction for any carbon dioxide emissions they do emit, with state governments typically receiving a share of the proceeds.

Joining the initiative while also implementing a rule that the state must generate a set amount of electricity using carbon-free resources would reduce carbon dioxide emissions from North Carolina’s power sector more quickly than either policy alone and the most of eight different options studied, Duke University and UNC-Chapel Hill analysts concluded.

On the flip side, joining RGGI and implementing a greenhouse gas emissions standard could add an average cumulative total of nearly $400 to residential electric bills by 2050, researchers projected.

That approach would also generate a projected $7.88 billion in economic growth, the researchers found. That was nearly $5 billion more than a standalone clean energy standard like the one North Carolina enacted in 2021 legislation.

The Chamber celebrated the shelving of both efforts in a blog post last September, describing the trucks rule as unnecessary because, they said, truck manufacturers are shifting to zero-emissions alternatives. And mandating such a change, the Chamber said, would increase the cost of trucks that most businesses use.

Joining the cap-and-trade program, the Chamber wrote, would have resulted in increased electric bills and would harm the state’s manufacturers that generate their own electricity.

The 2023 session, the Chamber post said, “has had the most regulatory wins for manufacturers and the business community” since 2015.

Of the 10 pro-business accomplishments the Chamber listed on environmental issues, nine were part of the 2023 state budget.

A Durham creek, thousands of pieces of Styrofoam

Madison Haley, plastics program assistant with the Haw River Assembly, goes through styrofoam pieces caught in a trash trap on the Third Fork Creek in Durham, N.C., Saturday, May 25, 2024. Styrofoam is far and away the most common item found in the trash trap.
Madison Haley, plastics program assistant with the Haw River Assembly, goes through styrofoam pieces caught in a trash trap on the Third Fork Creek in Durham, N.C., Saturday, May 25, 2024. Styrofoam is far and away the most common item found in the trash trap. Ethan Hyman ehyman@newsobserver.com

On that sunny Saturday in late May, a handful of volunteers waded into Durham’s Third Fork Creek up to their waists.

Just upstream of a device that looks like a floating cage, the volunteers plucked through collected detritus, snatching at the water in a manner reminiscent of the famous “I Love Lucy” skit.

Instead of chocolates, this group was searching for litter. When they plucked at the water, they came back with pieces of plastic and Styrofoam and other waste carried into the stream, often by stormwater.

Whenever they found a flake of plastic foam or a cosmetic container or a plastic bottle nestled among the leaves and twigs, the Haw River Assembly group placed them in floating orange bags. Then, volunteers carried those bags to the shore and sorted the trash, counting the pieces.

Halle Amick, a Durham resident who volunteers with the nonprofit, was perched above a tarp strewn with litter. While volunteers count most pieces of litter individually, they count Styrofoam pieces by the hundred.

“Every month it’s the same thing over and over and over. It’s not a one-time thing,” Amick said.

On that May Saturday, 6,573 of the 7,481 pieces of litter removed from the Durham stream were Styrofoam.

Beyond removing it piece by piece, there’s little locals can do about it. Durham’s city council can’t ban or tax its use on their own.

For that, they’d need to ask the General Assembly — and Republicans in charge — for help.

This story is one of a series of News & Observer reports called Power & Secrecy. It explores the rise of both in the N.C. General Assembly since 2011, when Republican lawmakers won control of both chambers for the first time since Reconstruction.

This story was produced with financial support from the Hartfield Foundation and Green South Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work. If you would like to help support local journalism, please consider signing up for a digital subscription, which you can do here.

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Adam Wagner covers climate change and other environmental issues in North Carolina. His work is produced with financial support from the Hartfield Foundation and Green South Foundation, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. Wagner’s previous work at The News & Observer included coverage of the COVID-19 vaccine rollout and North Carolina’s recovery from recent hurricanes. He previously worked at the Wilmington StarNews.



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