NCGA 2023: Toxic policies to poison our environment & democracy

By Laura DeVivo
NC Sierra Club Lobbyist

The 2023 legislative session was damaging to North Carolina’s environment and natural resources, fair elections, and equity and inclusion.

The mood in North Carolina mirrors that of our nation as politics becomes louder and policy becomes more polarizing. Legislators capped their harmful work by adopting new legislative and congressional district maps to be used in the 2024 elections that they hope will paint our purple state red.

N.C. Sierra Club members and supporters spoke up loud and clear on our priority issues, turning out in force to pressure lawmakers to protect our land, air, water and communities. Your activism was essential to any ground we were able to gain, and we'll continue to rely on you to help us hold politicians accountable in 2024.

The N.C. General Assembly continued to roll back existing hard-won environmental protections while also restricting abortion access, banning gender-affirming surgery for minors, and requiring implementation of a Parents’ Bill of Rights for our schools.

The session opened in January with a supermajority of Republicans in the Senate and just one member shy of a supermajority of Republicans in the House. When Rep. Tricia Cotham of Mecklenburg County jumped ship to join the Republican Party in late April, the legislative supermajority was set, and the GOP was able to override Gov. Roy Cooper’s six vetoes without help from any Democratic defectors.

One shared victory for North Carolina this year was expansion of the state’s Medicaid program to cover an additional 600,000 people without health insurance. Medicaid expansion was part of Governor Cooper’s campaign platform and easily his highest legislative priority. The passage of the state budget triggered the Medicaid expansion. So, although there were several budget provisions that Cooper - and the N.C. Sierra Club - objected to, he allowed the bill to become law without his signature.

The crisis over wetlands

In May, the General Assembly passed the Farm Act of 2023. Contained in that bill was a section that appeared innocuous but, when combined with the Sackett Decision at the U.S. Supreme Court, will undo a generation of wetlands protection in North Carolina, and leave 2.5 million acres of currently state-protected wetlands vulnerable to destruction. 

Section 5 of SB 582, the Farm Act, ties the definition of a wetland in North Carolina to the federal definition. The provision, titled “Clarification of Wetlands Definition," bars the state from adopting a stricter standard than that set out by the federal government. 

At about the same time lawmakers were considering the Farm Act, the U.S. Supreme Court was deciding the Sackett case - a dispute over whether use of the Sackett family's property in Idaho was restricted because of its classification as a wetland. The Sacketts argued that the acreage, dry land located between two bodies of water, was not a wetland because there was not surface water connecting the two bodies, regardless of any below-ground hydrologic relationship.

The high court unanimously found in the Sacketts' favor, ruling that they could not be prohibited from developing that land because it could not be classified as a wetland. But the court's opinion went on to undermine the integrity of the hydrology-based wetlands definition, tracking an earlier Supreme Court argument that chooses the appearance of a wetland over the science of a wetland, and that “adjacent” means “adjoining." 

Bolstered by calls, emails and other messages from N.C. Sierrans and allies who saw the looming danger, Cooper vetoed the Farm Act. His veto message enumerated the ways in which North Carolina wetlands clean and filter our surface and ground water, control flooding and provide wildlife habitats. But the General Assembly overrode his veto on June 27 and the bill became law.

Boards and Commissions power grab

In North Carolina, the executive branch of government makes policy with the effect of law, as well as spending decisions through its Boards and Commissions. These panels include several regulatory boards staffed by the Department of Environmental Quality with responsibility for rulemaking, administrative hearings and appeals; the Environmental Management Commission, Sedimentation Commission, Dam Safety Commission and Coastal Resources Commission are familiar examples. Other panels whose actions impact our environment include the Board of Transportation, housed at the Department of Transportation; and the Parks and Recreation Trust Fund, Land and Water Fund, and Natural Heritage Trust Fund at the Department of Natural and Cultural Resources. 

These executive boards and commissions historically have significant members appointed by the governor and, each year, the General Assembly has passed an Appointments Bill that includes appointments as directed by the governor. But this year, SB 512 did much more than that, taking much of this influence away from the governor.

For example, the Environmental Management Commission does the heaviest lifting of all environment-related commissions. SB 512 removed control of the 15-member board from the governor by giving two of his nine appointments to the Commissioner of Agriculture. Since the EMC members select the chair, the governor’s choice for chair is no longer able to garner the necessary majority to serve in that leadership role, thereby taking control of the EMC away from him. 

Since the two appointments were switched from the governor to the Agriculture Commissioner, they remain executive branch appointments, thereby removing one of the legal objections to earlier attempts at this power grab. N.C. Sierrans saw through this, joining in public calls to urge lawmakers to reject the bill and support of Cooper's veto - though ultimately without success.

The budget: Mostly bad, but some good news

The state budget consists of two documents: a bill that contains changes to laws and a report that outlines actual expenditures. In recent years, the budget bill has become a catch-all that includes non-budget law changes that historically had been run as stand-alone bills. The purpose of burying policy in the budget is to allow or force votes for controversial or unpopular policy that likely would not pass on its own. This year’s $30 billion budget was accompanied by 600-plus pages outlining ways to implement those funds, along with the many unrelated law changes.

One such provision called for expanding the Stanly County Airport to become a firefighting training center. The section's first draft included a Fire Training Facility that would allow crews to store, train with, and study the effects on firefighters and the environment of Aqueous Film Forming Foam (AFFF), a cancer-causing fire suppressant that contains per- and polyfluorinated substances (PFAS). The N.C. Sierra Club  and our allies strongly opposed the “study” language and were pleased that our lobbying - allied with firefighters - led to dropping the AFFF training section from the final legislation. We also were able to share with lawmakers our knowledge that North Carolina is home to a factory run by a leading manufacturer of non-AFFF firefighting foam that is comparable in performance and cost to the hazardous foams.

The budget also contained significant funding for water infrastructure upgrades, though those funds are earmarked for specific projects rather to be disbursed through a traditional application process. The budget also requires the Department of Environmental Quality to allow for wastewater discharges treated to certain specifications regardless of their permit requirements. The bill also directs that stormwater permit applications must be automatically deemed approved if they're not not approved or denied in 70 days, putting an undue burden on DEQ's understaffed permit review team.

The budget includes a provision blocking the ability of state agencies to implement the Advanced Clean Trucks plan. Another provision all but eliminates the state's vehicle emissions inspection program, leaving inspection requirements just for vehicles registered in Mecklenburg County and those manufactured before 2017. There are new or increased annual fees associated with owning electric vehicles and hybrids, presented as a way to make up for road construction funds that normally come from the state's gasoline taxes. And the budget lacks any implementation funding for the Clean Transportation Plan released in the spring.

The budget contains a provision prohibiting local governments from adopting local ordinances that would reduce plastic waste, something a couple of N.C. Sierra Club groups were promoting with local governments in their areas. The N.C. Chapter will continue to fight attempts to block local governments from enacting environmentally sound ordinances in reflection of their community members' values.

Other legislation we’ve been tracking

House Bill 600, Regulatory Reform, was enacted with a veto override. The bill contained many problematic provisions, in particular language that fast-tracks the Mountain Valley Pipeline's Southgate extension from Virginia into North Carolina - even though state regulators rejected needed permits multiple times. The bill also rolls back stormwater protection regulations, allows animal operations to undertake  composting and rendering activities with no permit, and prevents DEQ from considering civil rights and environmental justice in permit decisions.

House Bill 130, Consumer Energy Choice, was enacted without Cooper's signature. This law prohibits municipalities and counties from banning hookups for appliances using certain energy sources. In other states, local governments have banned new natural gas appliance hookups, citing environmental and other dangers.

Senate Bill 678, Promote Clean Energy, was enacted with a veto override. This law expands the state's definition of "clean energy" to include nuclear fuels. It also incentivizes new energy generation over energy efficiency, offering higher profits to power companies.

House Bill 198, Department of Transportation Agency Bill, is still in play for the 2024 legislative session. This bill includes a section that would allow significantly expanded tree-cutting zones around billboards, sacrificing scenery, habitat and carbon sequestration provided by our state's tree canopy.