Thursday, May 16, 2013

A Rush of Environmental Legislation

May 12, 2013: The bill “cross-over” deadline arrives this week. By May 16, most  bills  must pass either the House or the Senate and “cross over” to the other chamber  to avoid sudden death. (There are exceptions for finance bills, budget bills and constitutional amendments.) Because of the deadline, bills have been flying out of committees and to the House and Senate floor — leading to a flurry of posts. Two more bills that came out of committee last week (and are scheduled for votes this evening on the Senate or House floor):
Senate Bill 638 (N.C. Farm Act of 2013) makes  a  significant change to state water quality law by excluding  any wetland that is not considered “waters of the United States” from protection under the  state’s water quality permitting requirements.  The bill  takes a term (“waters of the United States”)   that  describes  federal  Clean Water Act  jurisdiction and  uses it  to  remove state protection for  wetlands that fall outside federal jurisdiction.  For reasons that mostly have to do with limits on federal authority under the Commerce Clause of the U.S. Constitution, not all state waters or wetlands are considered “waters of the United States”.  The limit on federal jurisdiction has nothing to do with the  importance of the wetland — it has to do with how the Constitution divides responsibility between the  federal  government and the states. The change in definition would mean that  someone could fill or discharge pollutants to wetlands that fall outside federal jurisdiction without any water quality  permit from the state. In committee, the change was described as one intended to help farmers, but developers are likely to benefit more.
House Bill 677 (Local Government Regulatory Reform)  came out of the House Regulatory Reform Committee. Language in the bill could interfere with efforts  to  keep the state’s urban areas in compliance with the  federal air pollution standard for ozone.  Meeting the ozone standard will be an increasing challenge as  population grows  and the ozone standard becomes tighter.  An area that fails to meet the ozone standard risks losing federal highway funding and new industrial development projects.  House Bill 677  prohibits cities and counties from adopting an ordinance that “[r]equires an employer to assume financial, legal, or other responsibility for an employee’s carbon footprint, which may result in the employer being subject to a fine. fee, or other monetary, legal, or negative consequences”.   Although the intent of House Bill 677 isn’t completely clear (and there was little committee discussion), the  bill  could  affect local programs to reduce  motor vehicle emissions that account for as much as 70% of the ozone pollution in urban areas. For example, a Durham  ordinance  requires large employers to do certain things to reduce commuter miles traveled by employees   in an effort to  reduce motor vehicle emissions.  The question is whether House Bill 677 will take away some tools that fast-growing urban areas like Durham can now use to stay  in compliance with the ozone standard.
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