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Hog-Tied: How Both Parties and Big Ag Have Thwarted Public Heath Regs in N.C. (Part 2)

by Andrew Gripp, published

Art Pope and the Republican Revolution

In 2010, Art Pope, the CEO of Variety Wholesalers – a discount store chain – began pouring money into statewide races in North Carolina. One of his groups, Real Jobs NC, helped pay for attack ads targeting Democrats. According to a lengthy profile of Art Pope by The New Yorker, Pope and allied groups spent $2.2 million on the 2010 legislative election. In the end, of the 22 races he targeted, 18 were won by Republicans.

For the first time since 1870, both houses of the General Assembly were under Republican control.

Art Pope also sponsored advocacy organizations and policy shops, such as Civitas Action and the Locke Foundation, which pushed for the adoption of a robust conservative agenda.

Martin Nesbitt, then a Democratic member of the state Senate, observed that these institutions were extremely influential once the Republican legislature settled in.

“The John Locke and Civitas foundations put out road maps for how to change everything," he said, "and the legislature pretty much followed the script.”

The Legislature and Rulemaking Agencies Tangle over Regulation

Since 2011, the legislature has proposed unprecedented changes to rein in the power of the state's regulatory agencies, especially the Department of Environment and Natural Resources (DENR):

  • In 2011, it reformed the rulemaking process to limit the adoption of state regulations that exceed federal guidelines, such as those from the EPA. It mandated an automatic legislative review of any rule that was more stringent than a federal regulation or if there are at least ten letters filed by the public objecting to any rule. The legislature has the authority to "disapprove" executive rules, which it has used in the past to overturn environmental rules in particular.
  • In 2011, the legislature created a "loophole" to allow the construction and expansion of operations that do not install ESTs, essentially revoking the moratorium imposed in 2007.
  • In 2012, a budget went into effect that cut the DENR's staff and reduced its appropriations to approximately half of its 2010-level. The legislature also delegated some rulemaking authorities to more industry-friendly commissions. That year, the new head of the DENR became John Skvarla, whom critics accused of being too friendly with the industry and of presiding over "an era of regressive environmental policies and procedures that placed industry over the needs of the environment and people," according to Amy Adams, a former water quality supervisor. Adams and another DENR employee, Susan Wilson, resigned in protest and warned of the repercussions of being asked to "do more with less."
  • In 2012, the legislature also took a major step in trying to curtail the executive branch's rulemaking authority over environmental protection. It established a Mining and Energy Commission, with the majority of its commissioners appointed by the legislature – a power traditionally reserved for the governor. In 2014, the legislature create two more commissions with a majority of its members appointed by the legislature. These bodies have been the subject of a lawsuit, and a panel of Superior Court judges ruled in favor of the governor in McCrory v. Berger, though the case is in the appeals process.
  • In 2012, the state also passed a law banning the use of scientific findings supportive of climate change in developing its coastal policies. One study anticipated a rise of 39 inches in sea level along the coast. The law prevents the state from having to take numerous and costly precautions, such as elevating roadways, building new waste treatment plants, and redrawing flood zone areas.
  • In 2013, the legislature passed another regulatory reform requiring the review and re-adoption of all rules every ten years. If they are not re-adopted, they expire. Such provisions can allow industries to "wait out" unwanted regulations and then lobby to weaken or kill them when they come up for renewal.
  • In 2013, the legislature also sent Republican Governor Pat McCrory a bill that would have imposed a one-year moratorium on localities passing their own environmental rules.
  • In 2014, the legislature sent a bill to the governor that would have resuscitated the Hardison amendment that forbade the passage of rules stricter than their federal counterparts. As environmental lawyer Robin Smith observed, this would pose a challenge in regulating "air toxics" such as mercury and benzene, for which the federal government has not established ambient air quality standards.
  • In 2015, the legislature lifted the state's ban on fracking, and 72 pages of rules regulating the industry were put in place by the Mining and Energy Commission – whose constitutionality is still in legal limbo. Critics note that it put no rules in place regarding air quality. The law delegated this responsibility to the Environmental Management Commission, but it only issues rules if the EMC deems them necessary. Thus far, none have been forthcoming.
  • In 2015, the Senate proposed SB 453, which, according to Robin Smith, has the potential to reward rather than punish polluters. She writes, the bill "could allow a property owner who actually caused environmental contamination to get liability protection and other benefits under the state Brownfields law (such as reduced property taxes) just by showing the contamination was not caused by a hazardous substance regulated under CERCLA," such as coal ash, since the EPA categorizes coal ash as solid waste rather than hazardous waste.

McCrory's administration has been criticized for being too lenient on coal ash pollution. In 2013, state regulators dismissed citizens' lawsuits against Duke Energy for violations of the Clean Water Act. Critics later complained of a "sweetheart deal" between the DENR and Duke Energy, where McCrory worked for 29 years. The agreement fined the $50 billion energy company $99,111 for violations at two coal ash dumps and did not mandate a cleanup.

In 2014, Duke Energy was responsible for the third-largest coal ash spill in American history, when it leaked 27 million gallons of wastewater into the Dan River. In a settlement with the federal government, it agreed to pay $102 million in penalties and other costs.

Activists Pose New Challenges to the Iron Triangle

Once again, advocacy groups are organizing and putting pressure on the agricultural industry, the legislature, and the regulatory agencies. In February 2015, the EPA accepted a complaint by groups such as REACH and Riverkeepers claiming that pollution from pig farms – including high levels of fecal bacteria in water – disproportionately impacts minorities and thus violates their civil rights.

According to journalist Barry Estabrook, studies show that pig farms are deliberately placed in poorer communities, where residents lack political power.

Undercover investigators have also captured instances of animal abuse in North Carolina farms, including PETA's exposure of abuse at a farm 

owned by Murphy Family Ventures and a Mercy For Animals investigation that revealed animal abuse at a Butterball farm.

Under pressure from animal welfare groups, Smithfield Foods has promised to phase out its use of highly constrictive gestation crates by 2017. According to Estabrook, feeding farm animals low levels of antibiotics – combined with confining them in highly cramped living conditions – is responsible for the incubation of lethal antibiotic-resistant pathogens.

Most recently, a Compassion Over Killing investigation revealed animal abuse at a chicken farm in Robeson County.

In response, the House passed a bill that failed to clear the General Assembly in previous years. The so-called "ag-gag" bill would make it illegal for an undercover investigator to gain access to a facility under false pretenses.

The Senate version of the bill is sponsored by Brent Jackson, a Republican elected during the 2010 Republican Revolution. One of Jackson's top contributors is the son of Wendell Murphy.

Sen. Jackson represents the state's 10th district – the same seat previously held by Democrats Murphy and Albertson.

Editor’s note: This article is part two of a two-part series on the relationship between both major parties in North Carolina and the agriculture industry. Check out part one here.

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