January 30, 2019. A fall trip to South Africa, followed closely by the holidays, made October-December something of a blur.
Leopard: Thornybush Game Preserve (photo G.Whaley)
Leopards, lions, and zebra – oh my! Also elephants, giraffes, rhinos (of the non-political variety), Cape buffalo, baboons, uninvited monkeys at lunch, hippos, wildebeests, hyenas, warthogs and an unexpected (to me) penguin colony.
African Penguin: The Cape
Also, a different set of environmental challenges: drought and drinking water supply; rhinoceros poaching; managing heavily vegetated bush and grassland habitat; and protecting the Cape’s extraordinary biodiversity.
Back to North Carolina developments in late 2018:
Executive Order on Climate Change and Clean Energy: On October 29, 2018, N.C. Governor Roy Cooper issued an executive order on climate change and clean energy. Executive Order 80 supports the 2015 Paris Agreement and sets several goals for the state to meet by 2025:
- Reduce state greenhouse gas emissions by 40% from 2005 levels.
- Increase the number of zero-emission vehicles in the state to 80,000.
- Reduce energy use per square foot in state-owned buildings by 40% from 2002-2003 levels.
The state has already made significant progress toward the first goal as a result of the 2002 Clean Smokestacks Act and 2007 adoption of a renewable energy portfolio standard (REPS) for major energy producers. (For background on the REPS law, see an earlier post on the first of several unsuccessful attempts to repeal the REPS standard.) Those two pieces of legislation had already begun to reduce the state’s greenhouse gas emissions by transitioning more base power generation from coal to natural gas (which produces lower levels of greenhouse gas emissions, although not emission-free) and greatly increased development of solar and wind generation facilities.
The most direct effect of the executive order will be on state government operations. The order provides new guidance to cabinet agencies on vehicle use; energy efficiency in state facilities; and priority for greenhouse gas reduction/clean energy in planning and allocation of economic incentives. Some state agencies received very specific direction — the Department of Transportation to encourage use of zero-emission vehicles and the Department of Commerce to use state incentives to recruit and develop clean energy businesses.
Executive Order 80 also directs all cabinet agencies to evaluate the impact of their activities on climate change and to
integrate climate adaptation and resiliency planning into their policies, programs and operations (i) to support communities and sectors of the economy that are vulnerable to the effects of climate change and (ii) to enhance the agencies’ ability to protect human life and health, property, natural and built infrastructure, cultural resources and other public and private assets…
Executive Order 80 now gives agencies ranging from NCDOT to DEQ and commissions like the Environmental Management Commission and Coastal Resources Commission clear direction to consider the impacts of climate change in exercising their planning and regulatory authority.
It is too early to know how agencies will respond to the mandates in Executive Order 80. The order creates a new N.C. Climate Change Inter-Agency Council chaired by the Secretary of Environmental Quality to coordinate efforts to reduce greenhouse gas emissions, increase clean energy development and improve state government’s energy efficiency. It also requires preparation of a N.C. Climate Risk Assessment and Resiliency Plan by March 1, 2020; that process will be led by DEQ and involve stakeholder input.
It isn’t difficult to imagine ways state agency decision-making might consider climate change adaption and resiliency. Rising sea levels and more frequent flood events could factor into planning the location of future roads and other public infrastructure as well as design standards for private development. An executive order cannot conflict with existing statutes or give a state agency authority it does not already have under N.C. law, but it can guide the use of existing authority.
December 2018 Legislative Session (Third Extra Session): Senate Bill 469 made two changes to state stormwater policies. Section 26 (a) of the bill amended language in G.S. 143-214.7(b2) that already allowed development in a buffer required under stormwater rules as long as stormwater from the entire developed area was collected, treated and discharged in the buffer. The provision has been amended to:
1. Apply to development in any buffer required under state stormwater rules. Previously, the exception applied only to development in buffers adjacent to shellfish waters, high quality waters, and outstanding resource waters, which are among the most highly protected waters in the state.
2. Require discharge of the collected and treated stormwater through a “segment” of the buffer. The law had originally simply required discharge of the treated stormwater through the buffer.
The more significant change may be in Section 26(b) which amends G.S. 143-214.7(b3). The law already prevented application of state stormwater rules to previously developed properties and limited application of the rules to property being partially or entirely redeveloped:
(b3) Stormwater runoff rules and programs shall not require private property owners to install new or increased stormwater controls for (i) preexisting development or (ii) redevelopment activities that do not remove or decrease existing stormwater controls. When a preexisting development is redeveloped, either in whole or in part, increased stormwater controls shall only be required for the amount of impervious surface being created that exceeds the amount of impervious surface that existed before the redevelopment.
Senate Bill 469 added a new sentence to extend those limitations to local government stormwater ordinances whether those ordinances implement state stormwater standards or have been adopted under other authority. Those “other” sources of authority could include federal Clean Water Act permits issued to local governments for municipal stormwater discharges and local government power under state law to regulate land use. In the first instance, the new limitation on stormwater controls for redevelopment projects may conflict with the local government’s federal permit. In the second instance, the amended law could frustrate local government efforts to reduce flooding by requiring better stormwater management as properties are redeveloped.
An example of the second problem: A developer bulldozes an old shopping center built before stormwater rules applied with the intent of redeveloping the property as condominiums. The amended law prevents the local government from requiring any stormwater controls for the condominium project unless the new development creates more impervious surface (paved or built-on areas) than the shopping center had. Then, the local government could only require control of stormwater from the additional impervious surface — likely to be a very small percentage of the total new development project.
The limits in G.S. 143-214.7(b3) on applying state stormwater rules to redevelopment projects had effectively shut the door on reducing stormwater pollution from areas developed before the rules existed. Extension of those limitations to local government ordinances under any source of local government authority will also make it more difficult for cities and towns to reduce future flooding after rain events. That is a public safety as well as a water pollution problem.
One other note on Senate Bill 469. The bill, titled “An Act to Make Various Technical, Clarifying, and Conforming Changes to the General Statutes and Session Laws”, included substantive changes like the stormwater amendments in Sec. 26 that could not by any normal definition fall into any of those categories. In the past, the legislature has been careful not to include substantive amendments in a bill designated by title for “technical, clarifying and conforming changes”. The moral of the story: do not judge a bill by its title.