Monday, May 03, 2010

Judge rules against state in cement plant case

Wake Superior Court Judge Donald Stephens issued an order Monday afternoon that affirms what environmentalists have been saying all along: The State Environmental Policy Act (SEPA) requiring an environmental impact statement does apply to a proposed Titan America/Carolinas Cement plant on the banks of the Northeast Cape Fear River.

Stephens' order reverses the contentions of the Perdue administration and several state agencies -- including the N.C. Department of Administration, supported by the Department of Environment and Natural Resources -- that SEPA does not apply to the proposed plant because no public funds have yet been spent on the project.

This is at the crux of the matter: The State Environmental Policy Act is triggered for several reasons, including whether public funds are spent on a proposed project. New Hanover County and the state of North Carolina have committed $4.5 million to the project, most of it from the county. The Department of Administration ruled that because the money had not yet been spent, there's no need for a state environmental impact statement prior to issuing permits. That position was troubling to many, because it meant that on any project with a potential environmental impact, if state funds are committed but not yet spent, there's no need for an environmental review.

That seemed absurd because the cement plant proposed for the Northeast Cape Fear appears to have potentially major impacts, including mercury deposition that local doctors are howling about.

In his ruling, Stephens rejected the state's argument that because no public money had been spent, there was no need for a SEPA review (a federal review is required, and the cement manufacturer contended that was sufficient) prior to the state's issuance of an air permit.

Stephens wrote, "SEPA does not ask whether there has been an expenditure of public money, but whether the project will involve an expenditure of public money. This is the only interpretation of the Act that gives meaning to its language and purpose. The Legislature could not have intended for companies to build a project, receive previously committed public grant money, and only then conduct the SEPA review of the project's potential environmental impact and proposed alternatives. An environmental review prepared after a project has been completed and begun operation would fail to meet the Act's stated purpose of informing the State's decision."

Stephens' decision in effect requiring state review prior to issuance of permits is the second major court decision on a case involving adequate review of environmental concerns -- both of them involving lawyers from the Southern Environmental Law Center. Several years ago U.S. District Judge Terrence Boyle ruled against the Navy in a decision that found the Navy did not take the legally required "hard look" at the impacts of a proposed practice jet landing field near the Pocosin Lakes National Wildlife Refuge. The Navy has since abandoned that site and looked for other in this state and Virginia.

The two decisions show jurists who take seriously the requirements of federal and state law aimed at requiring thorough examinations of any adverse impacts by proposed projects. Stephen's decision is based on the law as well as a common-sense look at what the law was meant to do.

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