Last minute amendment undermines important environmental review process

It never ceases to amaze just how far elected officials will go, often quite sincerely, in providing "incentives" to big, profitable corporations. There's just something so alluring about the prospect of that ribbon-cutting ceremony and the opportunity to at least create the impression that you're doing something about employment and economic development, that it seems there's scarcely any rule or principle that isn't subject to repeal or compromise.

Did we say that all companies receiving a subsidy from the state XYZ Fund had to provide high-paying jobs with health insurance? Silly us, we meant to say that they only need to pay minimum wage and pass out some flyers about where workers can buy health insurance.

Did we say that business subsidies would be limited to down-the-road tax breaks for smaller, innovative companies willing to locate in hard-hit areas? Sorry. We meant to say that we are willing to pay cash up front to giant multi-nationals to locate in healthy counties in which they would have located anyway. Come to think of it, if they're big and powerful enough, we'll even pay companies with existing facilities that simply agree not to cut as many workers as they might have.

Titan Cement

Yesterday, the state Senate added another new and creative example to the seemingly endless list of such soul-selling compromises. This one involves (or, at least is inspired by) the controversial plan of Carolinas Cement Co. (aka "Titan Cement") to develop the fourth largest cement plant in the United States just outside of Wilmington.

That proposal, of course, has generated smokestacks full of controversy for some time now as residents of New Hanover County have fought the plan based on a list of environmental concerns as long as your arm. According to citizen activists at the group StopTitan.org, the new plant would, among many other things:

• Create one of the largest sources of air pollution in the Wilmington area for the next 50 years,

• Be the fifth highest mercury emitting facility in the state and the largest in southeastern NC,

• Be a significant emitter of nitrogen dioxide (contributes to smog and ozone) and sulfur dioxide,

• Emit nearly 700 tons of particulate matter each year,

• Create a 2500 + acre mine, over 70-feet deep that would destroy over 1000 acres of irreplaceable wetlands, wildlife habitat and harm critical surface and ground water within the NE Cape Fear River ecosystem,

• Withdraw millions of gallons of water from the Castle Hayne and Pee Dee aquifers, lowering the water table and risking contamination of a major source of area drinking water.

One of the major checkpoints standing in the way of the development of the Titan plant is a section of the State Environmental Policy Act (SEPA), which requires a comprehensive state review when a project: a) involves the expenditure of state money, b) requires state action, and c) has the potential to significantly affect the environment. Although Titan is a private facility, its proposal clearly meets all three criteria – especially since it has been the beneficiary of direct public "business incentive" subsidies from state and local officials.

According to Titan and the business lobby, however, the expenditure of public incentive funds (in this case, in the form of direct grants from the Department of Commerce and New Hanover County) should not count as the "expenditure of public moneys" because they have not yet been spent – even though all concede that Titan will receive $4.5 million in grants if the plant is built as proposed.

As a Wake County Superior Court judge ruled back in May, the company's hyper-technical interpretation of the law makes no sense. "The Legislature could not have intended for companies to build a project, receive previously committed public grant money and only then conduct the SEPA review of the project's potential environmental impact and proposed alternatives," wrote Judge Donald Stephens.

As Stephens might have added, such an interpretation would make about as much sense as providing business incentives to a large and profitable corporation so that it can relocate a plant into an already thriving county and pay below-average wages!

Oh, wait a minute…

You can see where this is going. Yesterday, in keeping with the practice of multiple governors and General Assemblies when it comes to doing whatever big business demands, the Senate took action to do the precise thing that Judge Stephens rightfully pointed out as being completely illogical. In a waning-days-of-the-session floor amendment to an omnibus incentives bill, Senators amended the SEPA to make clear that incentives of the kind provided to Titan are not to be considered "public moneys" that would trigger application of an environmental review.

In other words, if the amendment sticks (it was adopted 45-3) and the bill becomes law in the last minute crush this week, a key provision of one of the state's most important environmental protection laws will have been significantly weakened.

What the Senate amendment will mean for the Titan case itself is not entirely clear. The language of the amendment says it is retroactively effective to May 1, two days before the Stephens order was officially entered, but one day after he actually signed it. According to some insider reports, an additional Senate amendment will be forthcoming to clarify that the change will not impact Titan case. Let's hope so.

Whatever, however, the impact on Titan, the change is clearly a step backwards when it comes to assuring that future projects posing a threat to the environment receive a comprehensive review. While there are several other specific permits that plants like the Titan development will still have to obtain (for water pollution, air pollution, etc…) the beauty of SEPA is that it requires a much more thorough and comprehensive review As one advocate explained, without SEPA, the review accorded to many future projects will resemble the proverbial blind men describing various parts of an elephant; each of the reviewers will be operating, in effect, wearing blinders.

Going forward

What's next? While it's still unclear what the amendment will mean in the Titan case (the matter is still before the Court of Appeals), it's hard to see how the message sent by lawmakers could be much plainer. Apparently, anything that the state's powerful business lobby wants when it comes to incentives is there for the asking – even it means repealing and/or backtracking on every basic standard of behavior that we would otherwise demand of responsible corporate citizens.

It's enough to make you wonder if lawmakers shouldn't just do away with the charade and simply authorize the Department of Commerce to waive any and all laws, rules and regulations that it or the NC Chamber fancies. At least then we could stop pretending.