Demoted former DEQ chief contradicts department policy in national environmental journal

When Donald van der Vaart and John Evans ran the NC Department of Environmental Quality, they were not shy about expressing their anti-regulatory, pro-business philosophy. But now the former secretary and his chief deputy, who stayed at the agency in lesser roles after Roy Cooper was elected governor, have published a controversial article in a professional journal promoting views that not only clash with those of the current DEQ leadership, but also appear to flout its authority.  

In the Environmental Law Reporter, van der Vaart and Evans shared the byline on a seven-page opinion piece calling for the repeal of a core tenet of the Clean Air Act, known as PSD, or Prevention of Significant Deterioration. For the past 45 years, the intention of PSD regulations have been to keep major polluters from eluding stricter emissions rules by moving into areas where the air is relatively clean. The industries could then sully the air in their new locations.

The two officials argue that the PSD is a form of “economic protectionism.” By requiring industries to further curb their emissions should they move into a cleaner locale, the PSD keeps them tethered to the “politically powerful” Northeast and Midwest, they wrote.

Ryke Longest, director of Duke University’s Environmental Law and Policy Clinic, said van der Vaart and Evans’ argument is “the flip side of environmental justice.”

PSD rules require major industrial polluters — coal-fired power plants, steel mills, wood pellet plants — to document certain emissions and to use computer models to determine future ones. The rules also require facilities to use the best available technology to control their emissions to they mandate public hearings if a polluter asks to increase the levels of its emissions.

The two men’s proposition to repeal the PSD, Longest said, “has very cynical roots, that rural communities can have as dirty air as large metros, that poor people and rural folks should get more pollution, not less.” 

A footnote at the bottom of the page — which easily could be missed — acknowledges that the opinions are those of the authors, not of DEQ. At the top of the page beneath their bylines, though, the two men prominently list their bonafides, including the current positions in the Division of Air Quality and previous leadership roles at the agency. 

It’s unclear if van der Vaart or Evans used state equipment, such as computers, to write or send either article — or if they did any of the work on state time. 

“It’s an extremely radical view — like something you’d read in Brietbart News — and I don’t think they reflect the current leadership at the department,” said Derb Carter, senior attorney at the Southern Environmental Law Center (SELC), of the article. “It appears to be an effort to undermine the current leadership after these political appointees put themselves in different positions.” 

In fact, DEQ supports the ongoing implementation of the PSD program, said Communications Director Jamie Kritzer, as “a cornerstone of federal and state air quality programs.”

“The PSD program is based on the common-sense approach of protecting air quality by subjecting the largest emitters to the most stringent levels of review,” Kritzer added. 

Kritzer said DEQ leadership “is aware of the article,” although he declined to say if it knew of the piece before publication. “We will review it and determine any appropriate next steps,” Kritzer said. 

Bill Holman served as DEQ secretary and assistant secretary from 1998 to 2001. He told Policy Watch that during his tenure, staff were welcome to contribute scientific and technical knowledge to journals, but he could not remember any instance in which a rank-and-file employee published an opinion piece that noted their affiliation with the agency. 

However, van der Vaart and Evans have written an opinion piece at least once before, in 2012, under the administration of Gov. Beverly Perdue, when Dee Freeman was secretary. In May/June edition of the American Bar Association’s “Trends,” the two, who at the time worked in the Division of Air Quality’s permitting section, penned an article about greenhouse gases and cap and trade strategies. 

While van der Vaart and Evans were writing articles, DEQ was issuing fewer violations to polluters — even as the state’s population grew by more than six percent. From 2011 to 2014, a time frame that bridges the Perdue and McCrory administrations, air-related penalties in North Carolina dropped by 93 percent while overall enforcement actions decreased by half. These changes also coincided with deep funding cuts throughout the agency; air enforcement was reduced by nearly a quarter, according to an analysis by the Center for Public Integrity.

In 2015 by Gov. McCrory appointed van der Vaart as secretary to succeed John Skvarla. Earlier this year, van der Vaart demoted himself and Evans in order to avoid being fired when Gov. Cooper took office. Both now work back in the Division of Air Quality as section chiefs — van der Vaart over technical services and Evans, ambient air monitoring. They are responsible for overseeing monitoring, permitting and enforcement staff within their respective sections.

It’s not unusual for department secretaries to take public positions on issues. Last November, van der Vaart wrote a letter to the incoming Trump administration calling for the dismantling of the Environmental Protection Agency, even though he hoped to be hired for a top job there.

However, van der Vaart and Evans are now in middle management, and no longer enjoy the privilege of setting the department’s agenda. By writing such an anti-regulatory piece, when at least part of their jobs relate to regulations, van der Vaart and Evans created the appearance of undermining the agency.

Myra Black, an SELC attorney who specializes in air quality issues, called van der Vaart and Evans’ article “pretty astonishing that you have section chiefs saying this should be undone.”

As secretary, van der Vaart butted up against the EPA about the PSD rules. He was in charge last September when the EPA disapproved of North Carolina’s implementation plan for those rules, as they related to emitters of fine particulate matter. That pollution, known as PM 2.5, is important because it burrows into the lungs and can cause or worsen respiratory illnesses.

DEQ challenged the EPA’s disapproval. But a federal court in Washington, D.C. dismissed the case. The result: DEQ had to change its plan.

Environmental Law Reporter by LisaSorg on Scribd