NC’s authority to handle its own water and air quality permitting is in jeopardy
The U.S. Environmental Protection Agency (EPA) has warned the NC Department of Environmental Quality (DEQ) that North Carolina’s administration of clean water and air permitting programs in the state is in jeopardy. DEQ’s attempt to shut citizens out of permit cases that directly impact them is the reason.
A letter dated Oct 30, 2015  from the EPA Region 4 Administrator to DEQ Secretary Donald van der Vaart makes the situation clear. In two recent cases (one an air emissions permit and the other a water discharge permit), state administrative law judges (ALJs) ruled that affected citizens had no right to challenge the permits in a contested case. The ALJs decided that state law (the state Administrative Procedures Act) ruled that out. The EPA Regional Administrator’s letter tells DEQ that if those decisions stand, then the state’s authority to administer the federal programs is likely to be withdrawn.
The letter states bluntly , “[T]he recent [case] decisions cast serious doubt on whether North Carolina’s authorized [clean water and air] programs can satisfy the minimum requirements for citizen access to judicial review of environmental permits going forward.”
The Regional Administrator goes on to say that while she understands that the issue remains “in flux” due to ongoing court challenges, North Carolina must ultimately come down on the side of allowing citizen input:
“However, in the spirit of no-surprises between our agencies, we must advise you that, should North Carolina appellate courts affirm decisions that limit citizen permit appeal rights in a manner which does not meet federal requirements, North Carolina’s authorization to implement CWA and CAA permitting programs will be in jeopardy, with little prospect for remedying deficiencies without legislative action.”
In its implications for our state’s administration of environmental law and protection programs, such a development would be an earthshaking result. No longer could businesses, industries, land developments, or even road projects that required any one of a number of key environmental permits, go through state reviews for approval. Instead, all would have to go through the regional (Atlanta-based) EPA office with all the delays that would entail. The very fact that the EPA Regional Administrator felt compelled to advise the DEQ Secretary of this risk indicates the extraordinary seriousness of the situation.
In fact, it’s a red flag of just how badly the administration of environmental protections has gone off the rails under this Department and Administration in our state.
The logic of EPA’s alarm bell is equally clear. If the people who would be directly impacted by the pollution from a project don’t have the legal “standing” to challenge the terms of the project’s permit and have their complaint heard, then what recourse do they have to protect themselves? That’s a result that the federal Clean Water Act and Clean Air Act never intended.
A copy of the EPA letter was obtained last Wednesday by the N.C. Coastal Federation’s Coastal Review Online and released to the public .
Broader media coverage of the attention-grabbing legal development quickly followed. “Citizens have a right to challenge pollution permits when the state fails to protect our clean air and clean water,” said Southern Environmental Law Center’s Derb Carter. The EPA has now “clearly warned” NC DEQ that , “if it wants to continue to administer air and water quality permitting programs, citizens must be allowed access to judicial review of permits issued by the state.”
Beginning under former Secretary John Skvarla and continuing under Secretary Donald van der Vaart, the McCrory Administration’s DEQ has adopted “customer-friendly” as its mantra and made clear that citizens impacted by pollution are not the “customers” it means. We hope that the most recent warning from EPA will shake some awareness into this bunch that no one stands to benefit if that one-sided approach continues – not business, not property owners, not state or local government – and certainly not the health of our citizens.