Environment 2020: A year of major wins, but also major losses

If it didn’t create air pollution, I’d burn my 2020 calendar. A terrible, awful year, despite a few, albeit significant environmental wins.

Climate change, of course, continued unabated. Otherwise, without a massive coal ash spill or major hurricane to capture the public’s attention, the environmental losses were quieter, more piecemeal, albeit also significant: A proposed mine in Caswell County, an approved one in Alamance. A proposed Land Clearing and Inert landfill  in Vance County. Yet another wood pellet plant whose air permit was approved by DEQ; it’s near tribal lands in Robeson County. A proposed plant that would convert creosote-treated railroad ties into “biochar” and emit air pollutants near a Black neighborhood in Richmond County.

In Duplin and Sampson counties, an expansive biogas project by Smithfield Foods and Dominion Energy would capture methane but entrench the open lagoon and spray system — and key details of the plan are secret. To illustrate just how outdated and perilous an open waste lagoon is, four days before Christmas, DC Mills Farm in Jones County discharged 1 million gallons of hog waste into a tributary of the Trent River.

And because of Colonial Pipeline’s enormous gasoline spill in Huntersville this year, the Top 5 environmental issues in North Carolina had to be expanded to six. The list could have been expanded further, but that would have been piling on.

1. A red alert on PFAS in drinking water

A year ago we knew PFAS, perfluorinated compounds, were bad for human health. Now we know they’re even worse.

Scientists and toxicologists in North Carolina and nationwide have held countless webinars, written scientific papers, testified before Congressional subcommittees and essentially yelled from rooftops that PFAS exposure is a public health crisis. Known as “forever chemicals” because it takes decades, if not hundred of years, for them to degrade in the environment, PFAS have been linked to kidney and testicular cancer, thyroid disorders, obesity, Type II diabetes, as well as harm to the developing brain and reproductive disorders. Recently, toxicologists found that high blood levels of PFAS can suppress the immune system and decrease the response to the COVID-19 vaccine.

Yet as the science has advanced, regulations have stagnated; hundreds of thousands of North Carolinians continue to be exposed through their public drinking water supplies, including Pittsboro, Cary, Wilmington, Brunswick County, Sanford and Fayetteville — as well as private drinking water wells. DEQ has recommended setting groundwater standards for two types of the compounds, PFOA and PFOS, which must be approved by the Environmental Management Commission. But that still leaves thousands of types of compounds unregulated in drinking water.

DEQ and Chemours, along with Cape Fear River Watch, agreed to a consent order that requires the company to essentially eliminate its air emissions containing the compounds. But most of the provisions in the order directly benefit the communities nearest the plant; downstream, in Wilmington and Brunswick County, any improvements would just trickle down.

Another toxic compound with a more cumbersome name, 1,4-Dioxane, has also been detected in drinking water supplies throughout the Cape Fear River Basin. It’s also been found in landfill leachate — basically the garbage juice that collects in tanks at the bottom of landfills and then is discharged to wastewater treatment plants. In turn, treated wastewater is often used as fertilizer on farm fields, replete with 1,4-Dioxane that can’t be removed by traditional treatment methods.

Big surprise: There is no drinking water standard for 1,4-Dioxane, either.

What’s next: Once PFAS are in the waterways, it’s impossible, at least using current technologies, to remove it. In which case, the contamination must be stopped at the source, of which there are many: industrial discharges, wastewater treatment plants, air emissions.

The EPA has issued lot of word salad about its plans to regulate PFAS, but has yet to draft any meaningful regulations, which should be a priority of the next administration.

The state Science Advisory Board recently discussed regulating PFAS as a class, but the SAB can only offers advice, not enact regulations. Industry opposes regulating PFAS as a class, but from a toxicological standpoint, it makes sense because the compounds share common chemistry, and so far have been linked to several of the same health problems.

Chemours has yet to submit its revised Corrective Action Plan to address GenX and other PFAS in the groundwater and drinking water within 10 to 12 miles of the Fayetteville Works plant. NC Attorney General Josh Stein is suing DuPont and Chemours over drinking water contamination.

As for 1,4-Dioxane, on Jan. 14, the Environmental Management Commission is scheduled to issue a final Special Order by Consent with the City of Greensboro for  its unlawful discharges of that compound into the drinking water supply.

2. DEQ Secretary Michael Regan’s big promotion

Experience soothing hostile lawmakers? Check.
A record of valuing science and empowering rank-and-file employees over politics? Got it.
A history of leading an agency whose budget has been cut to the bone marrow? Yep.
Any interest in building a $43,000 secret phone booth in his office? Not that we know of.

Michael Regan, you’re the next EPA administrator.

When President-elect Joe Biden picked Regan to lead the beleaguered agency, it was not the boldest choice, but the most pragmatic one. Over the past four years in North Carolina, Regan has had to navigate the state’s political minefields and withstand the routine and ruthless winnowing of DEQ’s budget. North Carolina’s dysfunctional legislative branch is like Congress, but in miniature.

Yet it was Regan’s advocacy for environmental justice and clean energy that caught the Biden administration’s eye. Progress on both of those issues has been incremental, but has been a refreshing change from the retrograde that occurred under Gov. Pat McCrory. And Regan has experience at the EPA: He worked in the air division for nine years, under Presidents Bill Clinton and George W. Bush.

As EPA administrator, Regan must immediately address the nationwide problem of PFAS in the drinking water supply. North Carolina is one of dozens of states whose waterways and drinking water are rife with the toxic compounds. The EPA must set a legally enforceable standard that is most protective of human health. Even though DEQ doesn’t have the sweeping powers of the EPA, the agency did not forcefully wield its authority under Regan, to the chagrin of many environmental advocates.

What’s next: Regan must be confirmed by the U.S. Senate, which is likely. However, if that chamber balks, it’s possible that President Biden could crib from the Trump playbook and name Regan as “acting” administrator. Gov. Cooper will appoint the next DEQ Secretary. Until 2017, the state Senate had rarely exercised its right to confirm gubernatorial nominees, but once Republicans gained the majority over a Democratic governor, lo and behold, lawmakers dusted off the rulebook and decided to require it.

3. Hog nuisance lawsuits + ‘ag-gag’ law struck down

When you’ve lost the heart and legal mind of a conservative federal judge, there is no redemption. After six years of legal maneuvering through the federal courts, multiple jury verdicts worth millions of dollars, all against Murphy-Brown/Smithfield Foods, it came down to three appellate judges at the Fourth Circuit Court of Appeals.

In November after nearly 11 months of deliberation, the panel ruled 2-1 in favor of multiple jury verdicts at the district court level, ruling that Murphy-Brown, the world’s largest pork producer, was indeed liable for nuisance. The plaintiffs, all Black neighbors of industrialized hog farms, had long been subjected to the stench, flies, vultures and truck traffic from these behemoth operations. And no, contrary to what the hog industry and its supporters said, the neighbors weren’t making it up.

Judge Harvie Wilkinson III, a Reagan appointee, tipped his hand during initial oral arguments and seemed outraged at the conditions detailed in the court documents. “If this were my property I’d be outraged at some of these conditions that were allowed to persist. Less fortunate citizens have property rights, too. They have a right to good health and enjoyment of their property. If this were some McMansion surrounding hog farming operations, or houses of the affluent and more politically powerful were here, wouldn’t these conditions have been cleared up sooner rather than later? That is my problem.”

In his concurring opinion, Wilkinson wrote that not only are people suffering as a result of industrialized hog farming, but so are the animals. “Charlotte’s Web reminds us that all life is interconnected,” Wilkinson wrote. “And while not all pigs will be pardoned like Wilbur, it is fitting that the creatures who give their very lives for us, receive in return our efforts to make their brief stay on earth less intolerable. For their sake and ours. Such is the web of life.”

Another loss for the industrialized livestock industry occurred in June, when a federal district court judge in North Carolina struck down the state’s 2015 “ag-gag law.” “Greenwashed” as the “Property Protection Act,” it allowed courts to assess civil penalties on employees who took videos or photos of a business’s non-public areas to document alleged wrongdoing, and then passed that information to anyone besides the employer or law enforcement.

While bill supporters argued that it protected businesses from the theft of trade secrets, its underlying intent was to thwart animal rights activists from getting hired at farms and research labs and then conducting undercover investigations. However, the law was broad enough that it could have applied to any employee. For example, law enforcement officers who documented abuses by fellow officers — but didn’t have faith in their supervisors to act — could have also been penalized had that information been passed to outside parties.

Workers at nursing homes or meatpacking plants who wanted to document sanitation practices during COVID-19 and pass the photos or video to the media could have been penalized. And whistleblowers who provided photo or video evidence to reporters could have been fined.

What’s next: Smithfield/Murphy-Brown is settling the hog nuisance suits out of court with the plaintiffs, with the terms as yet undisclosed.

However, lawmakers pass a Farm Act every legislative session, and it usually contains provisions that shield Big Ag from impunity. The next session begins Jan. 13 and will likely last until at least June.

Meanwhile, two civil rights attorneys Elizabeth Haddix and Mark Dorosin are suing the legislature over the 2017 and 2018 Farm Acts on constitutional grounds. They argue that state lawmakers violated the North Carolina constitution when they passed legislation that stripped residents of their right to sue industrialized hog operations for nuisance. The legislation is unconstitutional, they say, because it creates a special class of people who are prohibited from suing agricultural and forestry operations for nuisance. Oral arguments were heard in Wake County earlier this month.

As for the ag-gag law, the state of North Carolina has not yet appealed the case to the Fourth Circuit. Since Attorney General Josh Stein, a Democrat, was not in office when the law passed under a Republican administration, he might choose not to spend taxpayer funds appealing the case.

4. Atlantic Coast Pipeline, RIP

It was just another Sunday afternoon, on the Fourth of July weekend, when the news traveled over the transom: Duke Energy and Dominion Energy had killed the Atlantic Coast Pipeline. Surely this was fake news. The utilities had just won a major U.S. Supreme Court decision that removed some barriers for construction on the the 600-mile Atlantic Coast Pipeline to continue.

But no, it was true. The utilities had dumped their $8 billion natural gas albatross after deciding the costs would only rise, cutting into company and shareholder profits.

The ACP would have routed beneath 160 miles in eastern North Carolina, including through many communities of color and tribal lands. The clear-cutting and drilling beneath major rivers and drinking water supplies would have wreaked environmental damage. And the investment in fracked natural gas, with its attendant methane emissions, was anathema to meaningful progress in reversing climate change.

What’s next: The utilities are responsible for restoring areas that were excavated and clear cut for the route; that could take years. A separate project owned by different energy companies, the Mountain Valley Pipeline Southgate, is still in flux. It would run through parts of Rockingham and Alamance counties. DEQ denied a water quality permit for the project, and questioned the need for more natural gas in North Carolina. The companies can reapply, but since the main trunk of the project, the MVP, is encountering major legal hurdles in Virginia, the future of both projects is hazy.

5. Colonial Pipeline spill, the largest in state history

We can thank two teenage boys gallivanting through a nature preserve in Huntersville for uncovering the largest gasoline spill in North Carolina history — 350,000 gallons and counting, according to the latest company report. The boys were riding ATVs when they spotted gasoline gurgling from beneath the ground, originating from a breach in a pipeline traversing under the Oehler Nature Preserve.

The mid-August accident triggered a 24/7 cleanup, which is ongoing, as well as a full-court press public relations campaign. Officials from the town of Huntersville, the fire department and Colonial filmed a chummy roundtable discussion about the heroic nature of the company’s emergency response, yada, yada, yada. The town held several public meetings at which Colonial laid on the platitudes about their commitment to the community but supplied few substantive answers.

More than four months later, the shallow groundwater within a 1,500 foot radius of the spill is contaminated with cancer-causing chemicals. Even though tests haven’t detected contaminants in drinking water wells, Colonial has purchased three homes and connected two more to a public water supply — out of an “abundance of caution” and “to minimize disruption,” the company says.

The NC Department of Environmental Quality notified Colonial earlier this month that despite filing thousands of pages of tables and data, the company has failed to supply key information, including an explanation of how the spill went undetected for how long.

What’s next: Colonial was supposed to have answered these questions in a report due Dec. 23. But the company asked DEQ for an extension and the filing is due Jan. 23.

6. Coal ash cleanup

Back when 2020 seemed hopeful, DEQ announced in January that the agency and the Southern Environmental Law Center had settled with Duke Energy, requiring the utility to excavate 80 million tons of coal ash from its remaining unlined basins at six plants: Allen, Belews Creek, Cliffside/Rogers, Marshall, Mayo and Roxboro.

The ash must be dug up and deposited in lined landfills either on- or offsite, or recycled for beneficial use, such as in concrete.

Under legal pressure, Duke had already agreed to excavate the ash from the basins at its other eight facilities in North Carolina. Under this historic agreement, the excavation would finally cut off a source of groundwater and surface water contamination near those communities. The closure and excavation deadlines for the final sites range from 2028 to 2037.

Duke Energy said the agreement would save $1.5 billion in closure costs. The utility estimated it will spend $5.6 billion to $6.6 billion over the next 20 years on remediating the sites.

What’s next: The perennial question — who pays for the clean up? Shareholders or ratepayers? Or both? The state Supreme Court ruled in mid-December that Duke Energy shareholders don’t have to bear the full brunt of the costs, and ratepayers will cover at least half in higher energy bills.