Category Archives: Natural Resources

Constitutional Amendments

August 1, 2018. The General Assembly drafted six proposed amendments to the N.C. Constitution that will be on the November ballot for voter approval (or not). Two of the proposed amendments could affect environmental and natural resource policy.

Appointments to boards and commissions. House Bill 913  (short title: Bipartisan Ethics and Elections Enforcement) proposes to amend the Constitution to give the General Assembly more power to appoint members to state boards and commissions. Notwithstanding the bill title, the amendment could affect the makeup of every state board and commission —  including those responsible for environmental policy.

In North Carolina, citizen commissions — made up of unpaid volunteers rather than state employees — have a significant role in environmental policy. Commissions adopt most of the environmental rules enforced by the Department of Environmental Quality (DEQ). Some of the important environmental commissions: the Environmental Management Commission (water quality, air quality, waste management rules); Coastal Resources Commission (rules regulating coastal development and protecting public access to beaches and coastal waters); Marine Fisheries Commission (regulation of commercial and recreational fishing); and Oil and Gas Commission (regulation of oil and gas exploration and development).

Historically, laws creating commissions gave the Governor power to appoint all or a majority of the members.  But in recent years, the General Assembly has tried to exercise greater control  over some commissions by increasing the number of legislative appointees. In 2015, former Governor Pat McCrory  sued the General Assembly over laws giving the legislature power to appoint a majority of three  environmental commissions — the Coal Ash Management Commission, Mining Commission and Oil and Gas Commission. The governor argued the laws giving the legislature power to select a majority of  commissioners violated the N.C. Constitution’s requirement for executive, legislative and judicial powers to  be entirely separate. The N.C. Supreme Court ruled in the governor’s favor.  An earlier post  discusses the 2016 decision in McCrory v. Berger, which held that too much  legislative control over appointments violated the N.C. Constitution’s “separation of powers” clause by interfering with the governor’s constitutional responsibility to manage those executive branch agencies.

House Bill 913 responds to both the McCrory v. Berger decision and a more recent  N.C. Supreme Court decision, Cooper v. Berger,  striking  down a law similarly limiting the Governor’s power to appoint members to  a combined State Board of Elections and Ethics Commission. Section 1 of House Bill 913 would amend the Constitution to allow legislative leaders to appoint all of the members of the new Board of Ethics and Elections Enforcement.  But other sections of the bill propose broader amendments to the N.C. Constitution’s separation of powers clause and to the Governor’s Constitutional powers to give the legislature unbounded authority to determine  how appointments are made to all boards and commissions.

The new language seems intended to sidestep the McCrory v. Berger decision by inoculating the legislature against a separation of powers challenge based on legislative appointment of all or a majority of the members on an executive branch commission. Section 2 of House Bill 913 proposes to directly amend the separation of powers clause in the N.C. Constitution (Article 1, Sec. 6). The language of the amendment appears below.  Part (1)  below is the existing constitutional language; the underlined language in part (2) would be added if the amendment is approved:

“Sec. 6. Separation of powers.
(1) The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
(2) The legislative powers of the State government shall control the powers, duties,responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”

Section 4 of House Bill 913  proposes to also amend Article III, Section 5 of the N.C. Constitution to  limit the governor’s executive power over commissions by making those powers subject to the legislature’s authority to determine how commission members will be appointed.

The constitutional amendment would not directly alter appointments to any state commission other than the Board of Ethics and Election Enforcement. But the broad change to the separation of powers clause could free the General Assembly to change laws governing other commission appointments in the future to give the legislature all or a majority of appointments.

Hunting and fishing. Senate Bill 677 (short title Protect Right to Hunt and Fish) proposes to add a new Section 38 to Article 1 the N.C. Constitution to protect the right to hunt and fish:

“Sec. 38. Right to hunt, fish, and harvest wildlife.
The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”

The amendment  would allow regulations to protect species and maintain fish and wildlife populations for future harvest, but those would seem to be the only constitutionally protected types of regulation other than “laws concerning trespass, property rights or eminent domain”. The  limit on adoption of other types of hunting and fishing regulation  appears to apply to laws enacted by the General Assembly as well as  rules adopted by state agencies and local government ordinances. The impact of the constitutional amendment could be significant since the  language does not allow for other common types of fishing and hunting regulation such as:

♦  Public safety regulations. State laws and local ordinances regulating hunting  for protection of public safety — such as restrictions on hunting within city limits or hunting close to  houses and schools — could be unconstitutional under the amendment.  The legislature rejected a floor amendment that would have added language allowing for public safety regulation of hunting and fishing.

♦ Regulation to protect fish and wildlife habitat. The amendment may also raise questions about the constitutionality of  regulations affecting  gear used by fishermen if the purpose of the regulation is to protect habitat (such as submerged aquatic vegetation or salt marshes) rather than fish or wildlife species.

♦ Regulation of hunting and fishing methods. A number of state laws and wildlife regulations  limit certain types of hunting; time of day; the nature and use of traps; or put other restrictions on hunting activities.  For example, Wildlife Resources Commission rules restrict use of  dogs in certain hunts. A number of counties have additional local laws regulating use of lights in hunting;  imposing county-specific time of day restrictions; setting standards for traps; etc. It isn’t clear that those kinds of regulations would be constitutional under the proposed amendment since they don’t obviously fit within the two categories of constitutionally protected regulation. It also isn’t clear how a decision about the constitutionality of  regulations would be affected by the amendment language specifically (but not exclusively) protecting  “traditional methods” of hunting and fishing.

The vote. These two proposed constitutional amendments and four additional amendments on other subjects will appear on the November ballot. Each amendment will require the approval of a majority of voters to pass.

Note: This blogpost has been corrected to note that there will be six (rather than five) proposed amendments to the N.C. Constitution on the November ballot.

The NC Senate: Budget 2015

June 18, 2015.  Yesterday, the  N.C. Senate  took a first vote to approve a Senate version of House Bill 97  ( 2015 Appropriations Act).   The Senate received H 97 from the House of Representatives on May 22. The Senate  released its  alternative draft of the appropriations bill three days ago and quickly moved H 97  through Senate appropriations committees.  The Senate takes  a very different approach to funding state government than the House, but the Senate version of H 97 also contains many more “special provisions” — changes to existing law that go beyond finance and appropriations.  Some of the more significant environmental provisions in the Senate budget bill  (not by any means a complete list) below.

First, the Senate revisits the organization of state natural resource programs.  Sec. 14.30 of the Senate bill would combine  DENR’s natural resource programs (Division of Parks and Recreation, State Parks, Aquariums, the N.C. Zoo and the Museum of Natural Sciences) with cultural resource programs (such as the Museum of History and state historic sites)  in a new Department of Natural and Cultural Resources.  DENR would become the Department of Environmental Quality. Sec. 14.31  requires the two departments to study  whether  the Albemarle-Pamlico National Estuary Program,  state Coastal Reserves, the Office of Land and Water Stewardship,  the Office of Environmental Education and Public Affairs, the Division of Marine Fisheries and the Wildlife Resources Commission should also be moved to the new Department of Natural and Cultural Resources.

Other changes proposed in the Senate bill by subject (parenthetical descriptions are mine) :

COAL ASH

Sec. 29.18 (Beneficial use of coal ash) requires the Utilities Commission to report to several legislative committees by January 2016 on “the incremental cost incentives related to coal combustion residuals surface impoundment for investor-owned public utilities” including:

(1) Utilities Commission policy on  incremental cost recovery.

(2) The impact of the current policy on incremental cost recovery on utility customers’ rates.

(3) Possible changes to the current policy on incremental cost  recovery  that would promote reprocessing and other technologies that allow the reuse of coal combustion residuals stored in surface impoundments for concrete and other beneficial end uses.

Although a bit opaque, the Senate seems interested in the possibility of allowing electric utilities  to recover (through charges to consumers) the costs associated with making coal ash in surface impoundments available  for beneficial use.  Duke Energy has previously told legislators  that much of the coal ash in North Carolina impoundments  would require additional processing to be usable in concrete manufacturing.

COASTAL ISSUES

Sec. 14.6 (Use of sandbags for temporary erosion control) amends standards installation of sandbags for  erosion control on ocean and inlet shorelines. State rules now allow installation of sandbags only in response to erosion that imminently threatens a structure. The Senate bill allows a property owner to install sandbags to align with existing sandbag structures  on adjacent properties without showing an imminent erosion threat on their own property.

Sec. 14.10I (Strategies to address beach erosion) requires the Division of Coastal Management to study and develop a strategy “preventing, mitigating and remediating the effects of beach erosion”.

ENERGY 

Sec 14.29  (Federal energy grants) prohibits DENR from applying for grants from two federal programs – the State Energy Program Competitive Grant Program and the Clean Energy and Manufacturing Grant Program.

FISHERIES

Sec. 14.8, Sec. 14.10A and Sec. 14.10C  (measures to increase shellfish restoration and cultivation)

Sec. 14.8  directs the Division of Marine Fisheries to work with commercial fishermen,  aquaculture operations, and federal agencies to open additional areas in Core Sound to shellfish cultivation leasing.

Sec. 14.10A  directs DMF and the Division of Coastal Management to cooperate in  development of a new, expedited  CAMA permitting process for oyster restoration projects. The provision  also  authorizes DMF to  issue scientific and educational activity permits to nonprofit conservation organizations engaged in oyster restoration.

Sec. 14.10C Amends G.S. 113-202 to allow a lease for use of the water bottom to also cover fish cultivation or harvest devices on or within 18″ of the bottom. (Devices or structures not resting on the bottom or extending more than 18″ above the bottom will continue to require a water column lease.)

Sec. 14.10F (Joint fisheries enforcement authority) repeals the Division of Marine Fisheries authority to enter into a joint enforcement agreement with the National Marine Fisheries Service. The joint agreement allows DMF  to receive federal funding to enforce federal fisheries regulations in state waters.

SPECIAL FUNDS

Sec. 14.16  continues a recent trend of eliminating “special funds” that hold fees or other revenue dedicated for a specific purpose outside the state budget’s General Fund. The Senate bill eliminates special funds for mining fees,  stormwater permit fees, and UST soil permitting fees and moves the fee revenue into the General Fund.

STREAM AND WETLAND MITIGATION

Sec. 14.23 (Limiting the state’s role in providing stream, wetland, riparian buffer and nutrient mitigation)  requires DENR’s Division of Mitigation Services to stop accepting fees in lieu of mitigation in the Neuse, Tar-Pamlico and Cape Fear River basins within 30 months.  The provision then allows DENR (with the Environmental Management Commission’s agreement) to also eliminate the state in-lieu fee programs in all other river basins after June 30, 2018.

DENR’s  in-lieu fee program allows a developer to pay  a fee for mitigation  required as a condition of state and federal development permits. DENR  then contracts with private mitigation providers for the necessary mitigation. Payment of the fee transfers responsibility for providing the mitigation from the developer to DENR. Under a Memorandum of Agreement with the U.S. Army Corps of Engineers, the state’s in-lieu fee program can be used to satisfy stream and wetland mitigation required as a condition of federal Clean Water Act permits.

Eliminating  the State in-lieu fee program seems to eliminate the fee-for-mitigation approach as an option for developers. The burden would be back on the developer to find acceptable mitigation through a private mitigation bank or to plan and manage an individual mitigation project.  The change may slow some development projects that can now move  ahead based on the Corps of Engineers’ agreement to accept payments to the state in-lieu fee program as satisfying  federal mitigation requirements.

UNDERGROUND STORAGE TANKS

Sec. 14.16A (Elimination of the Noncommercial UST Trust Fund) phases out the state’s Noncommercial UST Trust Fund which reimburses property owners for the cost of cleaning up contamination from leaking underground petroleum storage tanks. The Noncommercial UST Trust Fund has  benefitted homeowners with soil and groundwater  contamination caused by home heating oil tanks and property owners  with contamination caused by USTs  used to store fuel for personal use — as on a farm. Under the Senate provision, the Noncommercial Fund could only be used for leaks reported before August 1, 2015 and claims for reimbursement filed by July 1, 2016. The Noncommercial Fund  would be eliminated for any petroleum releases  reported or claims made after those dates.

WASTE MANAGEMENT

Sec. 14.20 (Life of site landfill permits) amends G.S. 130A-294 to replace the current  5 or 10 year landfill permits with a “life of site” permit to cover landfill operations from opening to final closure. The provision would require permit review every five years.

Sec. 14.21 (Study of local government authority over waste collection and disposal services) directs the legislature’s Environmental Review Commission to study local authority over solid waste management including local fees; ordinances on waste collection and processing; cost to local government to provide solid waste services; and efficiencies or cost reductions that might be realized through privatization.   Solid waste collection and disposal services are entirely financed and provided by local governments;  many already contract with private entities for waste collection or landfill management.  It isn’t clear what the study might lead to since the legislature doesn’t have a role in  providing or financing local waste management services.

Sec. 14.22  (Privatizing landfill remediation) directs DENR to privatize the assessment and remediation of at least 10 high priority pre-1983 landfill sites. For several years, DENR has received a percentage of the state’s solid waste disposal tax  to fund assessment and cleanup of  contamination associated with landfills and dumps that closed rather than meet environmental standards that went into effect in 1983. Some legislators have expressed concern about the slow pace of remediation (and the resulting high fund balance). Note: Most state-funded remediation programs have a slow ramp-up in spending since it takes time to set up a new program and assess the sites.

WATER QUALITY

Sec. 4.5  (Nutrient management) earmarks $4.5 million from the Clean Water Management Trust Fund for a  DENR study of “in situ strategies beyond traditional watershed controls” to mitigate water quality impairment. The provision specifically mentions impairment by “aquatic flora, sediment and nutrients”, suggesting the study may be a continuation of the legislature’s effort to replace watershed-based nutrient management programs with technological solutions.

In 2013, the General Assembly suspended implementation of watershed-based nutrient management rules in the Jordan Lake watershed and funded a pilot project to test the use of aerators to reduce the impacts of excess nutrients on water quality. Sec. 14.5 allows extension of  the  pilot project contracts for another two years and delays implementation of the Jordan Lake watershed rules an additional two years or one year beyond completion of the pilot project, whichever is later.

Sec. 14.25 (State Assumption of permitting under Section 404 of the Clean Water Act) directs DENR to  hire a consultant to plan and prepare a state application  to assume the  federal permitting program under Section 404 of the Clean Water Act.   Sec. 404 requires a permit to fill waters or wetlands that fall under Clean Water Act jurisdiction. The U.S. Corps of Engineers issues Sec. 404 permits,  but a state can assume Sec. 404  permitting authority under certain conditions.  The U.S. Environmental Protection Agency oversees  404 permitting and would have to approve a state program. In a state that assumes Sec. 404 permitting, EPA retains authority to review  permit applications; a permit cannot be issued over an EPA objection.

Although several states have explored the possibility of assuming Sec. 404 permitting authority, only Michigan and  New Jersey have approved Sec. 404 programs. Individual states have reached different conclusions about the costs and benefits for a number of reasons. One may be cost — there are no federal grant funds to support a state 404 permitting program.   The Clean Water Act also prohibits state assumption of permitting in  tidal waters; water bodies used for interstate and foreign commerce;  and wetlands adjacent to both categories of waters. The U.S. Army Corps of Engineers would continue to have permitting authority in those waters and wetlands.

Sec. 14.26 (Transfer Sedimentation Act implementation to the EMC) eliminates the Sedimentation Pollution Control Commission and transfers responsibility for implementation of the Sedimentation Act to the Environmental Management Commission.

Once the Senate takes a final vote on House Bill 97, the bill goes to a conference committee to resolve the (considerable) differences between Senate and  House versions of the bill.  Few of the environmental provisions described above appear in the House version of the bill — although that doesn’t necessarily mean all of the Senate additions will be opposed by the House in conference negotiations.

ERC Recommends Environmental Legislation for 2014

April 10, 2014. In March, the N.C. General Assembly’s Environmental Review Commission (ERC) provided a first look at legislative proposals for the 2014 session. See an earlier post for more detail on the draft bills  presented to the ERC on March 12, 2014.  Yesterday, the ERC  voted to  approve a legislative package that included all of the proposals first presented in March.  There had been few changes  since  then;  the  bill on state review of engineering plans was the only environmental bill that had revisions. The ERC also approved one additional bill to remove small  areas currently included in several state parks and natural areas.

A few notes from yesterday’s discussion of the draft bills.

Stormwater: The ERC  endorsed a bill to repeal a 2013 legislative provision  that required the state’s water quality program to exclude gravel areas from the calculation of  impervious surfaces on a development site. (See the  March 19  post for more on impervious surfaces and  stormwater requirements.) Repealing the 2013 provision will again allow water quality staff  to make individual judgments about the permeability of  different combinations of aggregate material, substrate and installation method. ERC co-chair Ruth Samuelson noted a  DENR  concern about lack of funding for a  study required by the bill and suggested funding could be  addressed during the legislative session.

Isolated wetlands: The ERC also approved a  bill to allow somewhat greater development impacts to “isolated” wetlands without a state water quality permit. (Isolated wetlands fall outside federal Clean Water Act permitting jurisdiction.) The ERC bill would raise the thresholds for triggering prior state review of isolated wetland impacts and  reduce  mitigation requirements for larger projects  that require  an individual state permit.  The March 19 post provides more detail on the isolated wetlands bill draft; the bill has not changed since then.

Rep. Samuelson mentioned a  DENR  concern about raising the permitting threshold for wetlands in the eastern part of the state to one acre, but there was no further  explanation or discussion of the department’s concern.  (No one from DENR spoke during the meeting.) Rep. Samuelson also noted  a question from the  N.C. Homebuilder’s Association  about the relationship between the  ERC bill and  review of surface water and wetland rules under the Regulatory Reform Act of 2013.  Samuelson suggested the ERC may need to  think more about how the two fit together.   (More on the rule review and re-adoption requirements here.)   The N.C. Homebuilder’s Association has pushed unsuccessfully for  legislative  repeal of the state’s isolated wetlands rules in the past and sees the rule review process as another way to remove the rules.  The real question being asked by the Homebuilder’s Association is whether the ERC bill (a compromise that reduces isolated wetland permitting requirements without eliminating  protection completely) may stand in the way of complete repeal of the rules.

Review of engineering work: Since March, legislators made  some  technical and clarifying changes to the proposed bill on state and local permit review of engineering plans. Those changes largely involve definition or clarification of  terms used in the bill.

Local environmental ordinances: The bill draft approved by the ERC  remained unchanged since March. The bill immediately repeals a 2013  moratorium on local environmental ordinances  that impose stricter standards than  federal or state environmental rules. (The 2013 provision sunsets on October 1 2014 in any case.) The bill  approved by the ERC continues to focus on a narrow set of circumstances where a local ordinance actually conflicts with state or federal standards and identifies one  specific conflict between local fertilizer ordinances and rules adopted by the Department of Agriculture and Consumer Services. Otherwise, the bill directs  state environmental agencies to continue  to review new local ordinances for actual conflict with state rules and report back to the General Assembly in the fall of 2014 and again in 2015.

See an  earlier post for more on the controversy over local environmental ordinances;  the relationship between federal, state and local standards; and a 2013 Senate bill supported by the N.C. Homebuilders Association  that proposed much tighter limits  on local authority. Discussion in the ERC meeting suggests members may be making different assumptions about the scope of the proposed ERC bill. Legislators  who had worked on the bill draft consistently talked about identifying local ordinances that “infringe” on state authority; questions from other ERC members sometimes talked in terms of local ordinances that “overlap” state rules.

Reporting wastewater spills:  This  bill draft also remained unchanged since the March meeting. The bill requires reporting of a wastewater spill to DENR and to the public within 24 hours after the spill reaches surface waters — clarifying the duty to report to DENR and reducing the time for public notice from 48 hours to 24 hours.   At the March ERC meeting, Rep. Pricey Harrison  suggested requiring immediate reporting to DENR; that change was not made.

“Terminating” executive orders.  The ERC also approved a bill to “terminate” an executive order issued by Governor McCrory concerning  enforcement of standards for vehicles transporting solid waste.  Co-chair Samuelson indicated the bill may also become a vehicle for legislative action on executive orders issued by previous governors.   A future  post will go into greater detail on  the  controversy surrounding  the McCrory executive order and constitutional issues raised by a legislative attempt to “terminate” executive orders.

Removal of land from state nature and historic preserves: The  one new bill considered by the ERC yesterday makes adjustments to  lands included in several state parks and natural areas.  The General Assembly sometimes removes areas from state parks, natural areas  and historic sites to reflect  boundary adjustments or to accommodate road rights of way. The ERC bill would delete a total of  just under 1 acre from  Crowder’s Mountain State Park; the deletions appear to be boundary adjustments.   The bill removes  approximately 1/4 acre from Jockey’s Ridge State Park, referencing a surveyed easement for the Town of Nags Head.  The bill also deletes  7.26 acres from Gorges State Park for a state highway project and  3.39 acres from Lumber River State Park for a secondary road project. The final deletion would remove an unspecified  acreage  in the Lower Haw  State Natural Area in Chatham County. (The bill references the tract by deed book and page number, but has placeholders for both the acreage and specific property description.)  For the Lower Haw  State Natural Area deletion, the  bill  simply refers to removal under G.S. 113-44.14.  The  statute allows DENR to recommend removal of a state park if  “the major purposes of a park are not consistent with the purposes of [the State Parks Act]”.

Note: All of the the bill drafts recommended by the ERC  can be found  in the ERC  handouts for April 9.

To be continued:  The ERC did not take up any legislation related to coal ash. A special ERC meeting has been schedule for 1:30 p.m. on April 22 to receive an update on coal ash, but ERC co-chair Ruth Samuelson could not say whether legislation would be considered at that meeting.

Compromise on LEED Certification

The bill proposing to prevent state construction projects  from   seeking  “green building” certification  under LEED  standards  (House Bill 628) appears to be moving toward a compromise.  An earlier post described the controversy over  LEED standards for wood products.  Yesterday, the Senate Agriculture and Environment Committee approved a  new – and entirely rewritten – version of  House Bill 628.  You can find the new bill draft here. The Senate version of House Bill 628 does two things:

  1.  The bill adds entirely  new  language on  energy efficiency standards for state construction projects. The Senate bill  would  change existing law to only require state construction projects to meet more aggressive energy efficiency standards adopted by the General Assembly  in 2008  if the result would be a net savings in construction and operating costs.  To calculate “net savings”, the bill uses construction costs added to operating costs for the first ten years after completion (as compared to building the same structure without meeting the energy efficiency standards).   The committee heard some concerns about using ten years of operating costs to calculate net savings.  Apparently most energy efficiency construction contracts use 15-20 years as the time period for recovery of costs and calculation of net savings.  Senator Tommy Tucker, who offered the amended bill language in committee, said that he would be willing to consider a different time period as long as it is reasonable.
  2. The bill completely replaces the original House Bill 628 language on acceptable  “green” building certification.  The Senate version would allow state construction projects to  use any energy efficiency/environmental design rating system that  “(i) provides certification credits for, (ii) provides a preference to be given to, (iii) does not disadvantage, and (iv) promotes building materials or furnishings, including masonry, concrete, steel, textiles, or wood that are manufactured or produced within the State”.   The LEED rating system seems to meet that requirement by  providing  specific credits for use of  regional  materials. You can find the list of LEED credits available for new building construction/major renovation projects here.    A new commercial building must meet basic  LEED  requirements  and earn a minimum of 40 points on a 110-point  rating  scale to get  LEED certification. Use of wood products meeting  Forest Stewardship Council standards  can provide one  point, but use of regionally sourced  building materials can provide  two  points  (if 20% of the building materials meet the regional material standard).

A footnote on the issue of LEED certification and  use of N.C.  wood products: There has been an ongoing fight over what should count as “sustainable” forestry. (See the earlier post  on a recent complaint filed with the Federal Trade Commission about  “green” labelling for wood products.) Setting that aside,  concerns about the  impact of LEED certification on use of N.C. wood products  may   also come  from  the  way architects translate LEED standards into specifications for individual construction projects   The  House bill sponsor, Representative Michele Presnell,  used an example of major renovations at Tryon Palace (a colonial era building in New Bern) where the material specifications required use of wood products meeting Forest Stewardship Council  standards. Although major wood producers are located within a stone’s throw of Tryon Palace,  Representative Presnell said  they were closed out of bidding because none of those producers operate under FSC  standards.   I don’t have any direct knowledge of the specifications for the Tryon Palace project, but if that happened it seems to be an unnecessary result even under LEED standards. With a 110-point rating system, there are many different ways to reach the  40 points needed for LEED certification.  It is possible to reach  LEED certification without relying on the one point for wood products at all. (And the wood products credit only requires that 50% of the permanent wood products used in the building meet the FSC  standard.)

A conversation between the N.C. forest products industry and the state chapter of the American Institute of Architects about how specifications for LEED projects can be written to support use of N.C. products might benefit the industry even more than legislation.

House Bill 628 is on the Senate calendar today and will then go to a conference committee to work out the differences between the House and Senate versions.

More Conflict Over Sustainable Forestry

June 2, 2013

An earlier post talked about the conflict over sustainable forestry practices behind House Bill 628.

The bill would prevent any new state building project from seeking certification under Leadership in Energy and Environmental Design (LEED) standards for “green” buildings. The reason — few North Carolina timber producers meet the LEED standard for wood, making their  wood products less competitive for projects seeking LEED certification.   The unusual thing about the conflict is that it has nothing to do with laws or rules.  The decision to seek LEED certification as a “green” building is voluntary on the part of the builder.  A timber operation can decide  to follow the forestry practices necessary to meet the LEED standard for wood products — or not.  House Bill 628 is part of a larger effort by the timber industry to be more competitive in supplying wood for  “green” building projects, but under  a competing set of forestry practice standards developed by the Sustainable Forest Initiative — a program  created  by the forest products industry.

On Saturday, the New York Times reported that ForestEthics  and Greenpeace have filed a complaint with the Federal Trade Commission (FTC) charging that the Sustainable Forest Initiative  defrauds the public by  certifying wood and paper products as environmentally sustainable.  The FTC has responsibility for enforcing truth in labeling standards and has found itself in the middle of a number of controversies over “green” product claims. In October 2012, the FTC  released new  guidelines for  “green” product labeling that for the first time include recommended standards for certification programs.

The ForestEthics/Greenpeace complaint  argues that wood products from operations following  Sustainable Forest Initiative standards  are no more environmentally sustainable than other wood products. The two organizations particularly criticize the standards  as allowing overuse of pesticides and clear-cutting and providing too little protection for endangered species. The complaint also claims that the Sustainable Forest Initiative board cannot be considered an independent “green” product certification agency under the  new FTC guidelines because of the  influence of the timber industry.  You can find the full New York Time article here.

The FTC complaint is just the most recent in a series of  skirmishes involving ForestEthics and the Sustainable Forest Initiative. There is no question that the  forest products industry started the Sustainable Forest Initiative; it  began  as a program developed by  the American Forest and Paper  Association.  The Sustainable Forest Initiative certification program now operates as separate nonprofit organization with a governing board that includes representatives of environmental organizations.  ForestEthics argues  that organizational separation from the industry association did not  eliminate  timber industry  influence over the Sustainable Forest Initiative, citing the makeup of the board and its reliance on industry funding. You can find a list of current Sustainable Forest Initiative board members here.

The New York Times reported that it could be months before the public learns whether the FTC has opened a formal investigation of the ForestEthics/Greenpeace complaint.

In the meantime, House Bill 628 has passed the House.  On the Senate side, the bill has been referred to the  Agriculture and Environment Committee.

House Bill 628 : It’s Not Easy Being “Green”

May 7, 2013:  I just learned of  House Bill 628 (Protect/Promote N.C. Lumber)  today and set out to understand why the N.C. General Assembly would  want to stop  state construction projects from trying to  meet energy efficiency and environment sustainability standards. The short answer may be a perfect symbol of the  current environmental moment — an industry has asked the state legislature to do something to influence  a private nonprofit organization’s voluntary  environmental sustainability standards  because those standards set a higher bar than the industry wants to meet  to get credit for being “green”.

First, House Bill 628 really protects and promotes the particular type of “green” certification for  wood products supported by the N.C. Forestry Association. Certification of products and buildings as energy efficient and environmentally sustainable has become both an environmental movement and a marketing tool.  “Green” labels on consumer products appeal to environmentally conscious consumers. A green building certification appeals to those same consumers and to large institutions (public and private) interested in  environmental protection or cost savings from energy and water efficiency.  That consumer appeal gives a “green” label economic power and a war is currently raging over the kind of forestry practices that should get credit toward green product labels and green building certification.

House Bill 628 wades into the green building controversy. The U.S. Green Building Council, a nonprofit organization,  has developed the most widely known and accepted standards for environmentally sustainable and energy efficient construction.  The Green Building Council’s  program gives credit toward LEED (Leadership in Energy and Environmental Design) building certification for use of wood products that meet standards set by  the Forest Stewardship Council. You can find more information on LEED certification standards here.

The American  Forest and Paper Association created its own set of sustainable forestry standards in the 1990s.  The Forest and Paper Association’s  Sustainable Forests Initiative has since separated from the industry organization and operates as an independent nonprofit that maintains voluntary standards for sustainable forestry practices and  certifies  forestry operations meeting those standards.  The forest products industry has pushed the U.S. Green Building Council to give credit toward LEED certification for use of wood from a forestry operation certified by the Sustainable Forests Initiative, but the Green Building Council has resisted the change.

One afternoon has not been enough to fully understand the differences between certification under the Sustainable Forests Initiative versus the Forest Stewardship Council, so I am not going to try to resolve the controversy over their relative merits.  For purposes of understanding the political fight, conservation organizations believe the Forest Stewardship Council standards used for LEED certification do a better job of protecting endangered species and old growth forests and are less likely to result in clear-cutting.  The forest products industry prefers the Sustainable Forests Initiative standards as less costly and sustainable enough.

What does House Bill 628 do?

●   It prevents any future state construction projects from seeking LEED Certification.  (The bill only allows state projects to seek green building certification from a program that gives credit under the Sustainable Forests Initiative and uses standards approved by the American National Standards Institute.  The LEED program does not meet either of those requirements.) The move away from LEED certification for state buildings  will likely set back efforts to push state construction projects to greater energy and water efficiency and a smaller environmental footprint.

●   Ironically, the bill may hurt other North Carolina industries that benefit from LEED standards encouraging use of local materials.  A representative from Nucor Steel (a North Carolina-based company that produces steel from recycled   materials)   spoke against the bill in the House Agriculture Committee meeting today  and noted the value of  LEED standards as an incentive to use of domestic steel in construction.

Is there an offsetting benefit to the North Carolina lumber industry? That is not clear. Nothing the N.C. General Assembly does can compel the U.S. Green Building Council to change  LEED standards; it is entirely possible that House Bill 628 will order the state to abandon LEED certification for state construction projects without achieving any change in LEED standards for wood products.  It also isn’t clear that the LEED standard for wood represents a real barrier to use of North Carolina lumber.  The LEED standard for wood represents a very small part of the LEED green building certification. A commercial building must meet basic  LEED  requirements  and earn a minimum of 40 points on a 110-point  rating system scale for  LEED certification. Meeting the wood standard  just provides one point.   The wood standard itself is modest —  a builder can earn that one point by using only 50% (based on cost) of wood-based materials and products certified by the Forest Stewardship Council for permanent building components( such as framing and floors); temporary construction materials do not count against the percentage.

It is also difficult to argue that the LEED standards disadvantage N.C.  products, when each  N.C. forestry operation can choose to meet  the  voluntary Forest Stewardship Council certification standards that  receive credit  toward  LEED certification. The real issue is that N.C. wood producers want the benefits of a “green” product label — but also want to set the standards for being “green”.