Friday, May 28, 2010

D'Annunzio may sue state Republican chairman

The Republican primary in the 8th congressional district just gets more bizarre. Now the leading candidate in the May 4 primary, Tim D'annunzio is threatening to sue State Republican Party Chairman Tom Fetzer of Raleigh for calling him unfit for office and raising old issues. I'm not a libel lawyer, of course, but I do know it's pretty hard for a candidate with as many flamboyant utterances in his past as Tim D'Annunzio to succeed in civil court on a libel or defamation claim.

 He surely knows that, too, but he's trying to win the June 22 runoff primary against runner-up Harold Johnson, and a threat to sue is as good a way to get attention as any. Thing is, that kind of attention is what Democrats love most about this race, and they're no doubt counting on the craziness in the GOP primary to make voters forget all about whatever it is that they didn't like about first-term incumbent Larry Kissell. D’Annunzio is demanding a retraction and a letter of apology from Fetzer and says he’s considering filing a $5 million lawsuit against Fetzer.

Here's a copy of what the D'Annunzio campaign sent out last night:

Tim D'Annunzio Takes Action Against NC GOP Chairman Tom Fetzer

RAEFORD, NC - Tim D'Annunzio, Republican candidate for Congress in North Carolina's 8th Congressional district, today began taking steps towards legal action against North Carolina Republican Party Chairman Tom Fetzer. Tim has sought legal counsel and sent the following letter demanding a retraction of his negative comments and ordering Mr. Fetzer respond with a letter of apology.

- - -

Dear Mr. Fetzer:

As you may know, this firm serves as counsel and represents Mr. Tim D'Annunzio.

Mr. D'Annunzio is deeply saddened by and concerned about the recent defamatory statements and allegations you have made including the assertion that Mr. D'Annunzio is "unfit for public office." He demands retraction.

Certainly, you and Mr. D'Annunzio have had differences. Mr. D'Annunzio has opined that you have, as the Chairman of the North Carolina Republican party, (1) sought to control him and to compel him to act as you direct, and (2) been angered and upset by Mr. D'Annunzio's independence, affiliation with "Tea Party" voters, and his unwillingness to be required to submit to you and others in your "political oligarchy," which he believes will do nothing more than maintain the status quo within the Republican party and compromise the conservative values he holds.

Now, Mr. D'Annunzio believes that you have unfairly personally attacked and assailed him and improperly and inequitably used your power and position in an effort to harm him by making deliberately, intentionally, and maliciously disparaging comments concerning him.

Mr. D'Annunzio is considering filing a civil law suit against you in which he would seek damages in excess of five million dollars ($5,000,000.00) caused by your comments, which resulted in matters from his youth and allegations from a divorce which occurred fifteen years ago being used to impugn Mr. D'Annunzio and to hold him up to ridicule, harming him in his campaign, his business and professional life, and causing great pain and anguish to his family.

As you know, Mr. D'Annunzio maintains his commitment to fundamental constitutional values. Yet, he also maintains that the utterances and publications that you have made individually and in confederation with others are not entitled to constitutional protection. As the North Carolina Courts have said:

At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool . . . . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Your statements, asserting that Mr. D'Annunzio has not overcome his mistakes, that there is no healing or redemption for those who erred more than 15 years ago in a divorce situation, and that the errors that he made as a juvenile, continue so as presently and always to "disqualify him... from serving [in any] elected office," are false. This falsity and the structure and form of the statements are such as to cause a hearer or observer of those words to believe erroneously that Mr. D'Annunzio has not overcome, as he has, those difficulties of his past, and that he is not putting the past behind him, learning from it, and moving forward --- looking to move this state, this district, and this nation forward, overcoming its own adversities.

In an effort to apply those principles of learning, healing, and overcoming and to move forward, Mr. D'Annunzio is willing to resolve this matter in much the same way as you resolved a civil matter in which you believed you were unfairly cast in a negative light. That is, Mr. D'Annunzio is willing to waive his right to sue, provided that you retract your negative declarations, you issue a letter of apology, and you agree to resolve this matter in a civilized and proper manner.

We will expect your response no later than June 7, 2010. In any event, please accept this notice and demand that retraction is sought.


The Mitchell Law Group

Thursday, May 27, 2010

Former justice: 'Open up' on incentives

Former N.C. Supreme Court Justice Robert Orr, who has challenged the state's granting of financial incentives including tax credits to attract new jobs to the state, is also opposing a legislative move to grant up to $23 million in incentives over the next two years for corporations that would bring new jobs here. Orr, executive director the N.C. Institute for Constitutional Law, said the plan to attract jobs from two data centers, an energy turbine make and a paper plant, should not move forward without making more details public, including the names of the companies seeking the incentives.

An AP story Thursday quoted Sen. Dan Clodfelter, D-Mecklenburg about the plans. "These are live fish," he said. "They have told us what it would take to seal the deal." The AP report said the paper plant would locate west of Charlotte and south of I-40. The plants combined would result in as many as 1,550 jobs and invest about $1.9 billion in overall investments. But Orr argues for more transparency.

In a statement, Orr said, “As we watch the General Assembly and local governments cut teaching jobs, other educational programs and numerous other areas of necessary government services, these same legislators are willing to give away millions in tax revenue to ‘unnamed’ corporations. A fundamental question needs to be asked of these corporations. Do you need this money more than the students and educators of our state? Do you need this money more than public safety programs and the court system or recipients of mental health services? If the answer is 'yes' then let those corporate executives stand before the citizens of this state along with their legislative friends and high-paid lobbyists and explain why they need it so badly. Instead the legislative process hides the identity of these corporations as well as the names of their lobbyists who are trolling the halls of the Legislature and the Commerce Department. The public is kept in the dark as to who they are or what they’re demanding in the way of public benefits… The public has a right to know BEFORE the votes are taken and taxpayer money committed. It’s time to open up the process.”

Friday update: The Senate has given tentative approval to the bill on a 39-4 vote, which tells you it has a lot of support in the Senate.  The N&O quotes Clodfelter as saying, "You must spend the money in North Carolina before you qualify for the incentives. This is a fairly concrete response to negotiations that are going on with Commerce and five companies that say they are considering locating or expanding in North Carolina."
The N&O also quoted Sen. Bob Rucho, R-Meck., that the best way to lure business is to cut corporate tax rates. "The corporate tax system has been a real anchor on our ability to be competitive in the states and acro:s the globe.

What's highest NC town? Highlands? Or Beech Mountain?

The other day the U.S. Department of Interior sent around a news release about a new national trail in what it said was the highest incorporated town east of the Mississippi, in Highlands, N.C.

Sharp-eyed reader Joshua Harris of Denton, Texas begs to differ: The highest town in North Carolina is Beech Mountain, he writes, and points to the town's Website noting its altitude as 5,506 feet, well above Highlands' 3,838. The Website notes that Beech Mountain, begun as a private resort, was incorporated by the legislature in 1981.  Maybe there's more to the story why some folks think it's Highlands.

Here's the note:

Thank you for the blog post about the new trail in Highlands. However, I must point out that, despite what the Department of the Interior says, Highlands, NC is not the highest incorporated town east of the Mississippi. As a former resident of the High Country I had always heard that that distinction went to the town of Beech Mountain on the border of Avery and Watauga Counties. Wikipedia confirms this (,_North_Carolina )
as does the Beech Mountain town website (


Joshua Harris

Denton, Texas

Wednesday, May 26, 2010

Misinformation in fight over jetties

One hot issue that may come before the House of Representatives in this short session is whether to allow construction of single rock jetties -- called "terminal groins" -- at coastal inlets to help cut down on nearby beach erosion at such oceanfronts at Figure Eight Island and Ocean Isle. It's a hot issue because it would change North Carolina's longtime ban on the use of hardened structures such as groins to stop or slow erosion. It's been a good policy because such groins almost always result in damage to neighbors' property because of the refocused action of waves scouring away sand.

Last year the Senate passed a bill to allow terminal groins in a few key areas after proponents pointed to the use of groins that help stabilize Beaufort Inlet and help protect the base of the Bonner Bridge at Oregon Inlet. The legislature directed the Coastal Resources Commission to conduct a study and make recommendations based on the findings. The $300,000 study found that terminal groins can help stabilize inlets, but also noted that there can be significant costs involved. And earlier studies questioned whether the groin at Oregon Inlet had been effective in any way because it requires regular, costly beach renourishment to repair damage on Pea Island attributed to the groin.

Still, proponents of the groins are worried about further loss of beach property and expensive homes, and they'd like to try using groins. They're pushing House Speaker Joe Hackney to allow the Senate-passed bill to come up for a vote, and they're urging members to carpet bomb Hackney's office with hand-written letters emphasizing that the Coastal Resources Commission "studied terminal groins, stated that they are effective and made recommendations on their use."

Well, not exactly. Studied, yes. And it did say that "terminal groins, in combination with beach nourishment, can be effective at controlling erosion at the end of barrier islands."

But it also recognized that while groins can "hold the tip of the island in place… there can be other resultant impacts" that may "undermine the groin." It also found that while beaches may build up, they may also recede. The commission also said the study findings are inconclusive and the commission could not make a determination that terminal groins would or would not cause adverse impacts.

While proponents imply that the commission recommended groins, in fact the commission had many reservations about their use -- and suggested conditions if the legislature decided to allow them in certain circumstance. That's not exactly recommending their use, is it?  For those who take the time to read it all, here's what the commission actually said:

The General Assembly directed the CRC to conduct a study on the feasibility and advisability of the use of terminal groins as an erosion control device. The study determined that terminal groins, in combination with beach nourishment, can be effective at controlling erosion at the end of barrier islands. The individuality of inlets necessitates site-specific analysis. The study findings were mixed regarding the effects of terminal groins on wildlife habitat and marine resources.

If it is the desire of the General Assembly to lift some of the limitations specific to terminal groins, due to the individual nature of inlets, the following factors must be effectively met:

1. In light of the current policy favoring a non-structural approach to erosion control, the use of a terminal groin, should be allowed only after all other non-structural erosion control responses, including relocation of threatened structures, are found to be impracticable.

2. The effects of a terminal groin on adjacent beaches are variable and a primary concern. Any use of such a structure should include siting and construction that avoid interruption of the natural sand movement to downdrift beaches.

3. The nature of terminal groins and the potential effects on coastal resources adjacent properties necessitate a full environmental review. Any proposal for the construction of a terminal groin should be accompanied by an environmental impact statement that meets the requirements of the NC Environmental Policy Act (NC G.S. 113-4).

4. To ensure the adequacy of compliance with SEPA and the protection of the public interest, third-party review of all environmental documents should be required. The cost of third-party review should be borne by those responsible for the project. This third-party review should include all design, construction, maintenance and removal criteria.

5. Since a terminal groin may impact properties well beyond those adjacent to the structure, notification of property owners in areas with the potential to be affected by the terminal groin should be required. This notification should include all aspects of the project likely to affect the adjacent
shoreline, including construction, maintenance and mitigation activities as well as post-construction effects.

6. As the post-construction effects of a terminal groin on coastal resources and adjacent properties are difficult to predict, financial assurance in the form of a bond, insurance policy, escrow account or other financial instrument should be required to cover the cost of removing the terminal groin and any restoration of adjacent beaches. Financial assurance should also be required for the long-term maintenance of the structure including beach nourishment activities. (Legislative authorization for requiring financial assurance would be necessary).

7. The use of a terminal groin would need an adequate monitoring program to ensure that the effects on coastal resources and adjacent properties doe not exceed what would be anticipated in the environmental documents. All monitoring of impacts of a terminal groin on coastal resources and adjoining properties should be accomplished by a third-party with all cost borne by those responsible for the project.

8. As terminal groins are typically used in combination with a long-term shoreline management program, any proposal for use of a terminal groin in NC should be part of a large-scale beach fill project, including subsequent maintenance necessary to achieve a design life of no less than 25 years.

Tuesday, May 25, 2010

New National Hiking Trail for N.C.

Secretary of the Interior Ken Salazar has announced designation of 31 new National Hiking Trails, including the Highlands Plateau Greenway in Western North Carolina.

Good. Up in Highlands, it's not likely that BP will be drilling a mile-deep well to blow up and contaminate the new trail.

Salazar's announcement adds some 716 miles to the National Trails System. In a news release, Salazar said, "From coast to coast, the National Trails System helps connect American families with the wonders of the great outdoors. These new national recreation trails, built through partnerships with local communities and stakeholders, will create new opportunities for fitness and stewardship while creating a lasting legacy for our children and grandchildren."

Here's how the Interior Department describes the Highlands Plateau Greenway:

"Highlands Plateau Greenway

The Highlands Plateau Greenway is located in Highlands, North Carolina, the highest incorporated town east of the Mississippi. The 5-mile network of continuous walking trails connects natural areas and historic sites for educational and recreational opportunities. Straddling the Eastern Continental Divide in a temperate rainforest, the area boasts the highest floral and faunal diversity in North America. Because of this unique environment, landscaping along the trail with plants native to the southern mountains is a major focus."

Another small bit of good news: To commemorate the addition of the new trails, the department will waive fees to enter national parks on the weekend of June 5-6 "to help encourage people of all ages to get outside and use trails for exercise and exploration. In addition, hundreds of organized activities including hikes, educational programs, bike rides, trail rehabilitation projects, festivals, paddle trips, and trail dedications will take place. A listing of activities is available at"

Monday, May 17, 2010

Oil for this, raise your hands

This one's too good to pass up

Scott Mooneyham, who used to be Associated Press's legislative correspondent and is now editor of the insider, has a few light-hearted suggestions for Gov. Bev Perdue's plans to combine, consolidate or eliminate some of the 400 boards and commissions in state government.

My favorite is his suggestion to merge two boards: "The N.C. Medical Board and the Legislative Research Commission Advisory Subcommittee on Offshore Energy Exploration. Anyone who still believes oil drilling off the North Carolina coast is a good idea probably needs their head examined."

Thursday, May 13, 2010

Gulf spill diminishes N.C. support for drilling

For the first time, support among North Carolinians for offshore drilling to explore for energy has declined to below 50 percent, and one reason is the oil spill in the Gulf of Mexico. A poll by PPP found just last month that 61 percent of N.C. residents supported drilling. President Barack Obama has called for more offshore exploration, including in the Atlantic, and many Tar Heel residents thought he was on the right track.

They still do, in fact. But support has dropped to 47 percent, while 38 percent of the public opposes it, reports Tom Jensen. That's up from 26 percent who opposed it last month. The polling firm had never before found less than majority support for drilling.

Jensen said those who responded to poll questions made it clear that the oil spill in the Gulf was a key reason for the turnaround. Fifty percent said the spill made them less support of drilling, 28 percent said it made no differernce and 22 percent said they were even more supportive.

Jensen said, "The decline in support for drilling has come across party lines. There's been a 17 point drop with independents (from 65% support to 48% support), a 16 point one with Democrats (from 52% to 36%), and an 11 point one with Republicans (from 73% to 62%).

"Interestingly voters in eastern North Carolina seem to be comparatively unaffected by the recent events. Folks in the 252 and 910 area codes remain supportive of drilling at a rate higher than the rest of the state."

Nationally about 55 percent support drilling still while 30 percent oppose it.

Jensen didn't say so, but part of the thinking of many opponents may be what could happen here if ocean currents bring part of the oil spill around Florida and then up the coastline in the Gulf Stream. If the wind should shift and blow from the Northeast at the wrong time, as coastal scientists have shown, it could bring some of the oil to Tar Heel shores. That's what happened in 1988 with the red tide.

Wednesday, May 12, 2010

A marker for the mansion, at last

North Carolina has 1,544 highway historical markers (sometimes known as history on a stick) indicating spots along roadsides where some event, group, building or person of note was held, organized, built or born. But for some reason, the governor's mansion -- formally known as the Executive Mansion -- finished in 1891 on Blount Street a couple blocks east of the Capitol never had one of those silver and black historical markers. Bob Eaves, husband of Gov. Bev Perdue, whose office never misses an opportunity to point out that he's the state's First Gentleman (and some folks even note that he's the First First Gentleman in state history), raised the question last year: Why not?

It's a good question. The governor's mansion was built by prison labor using native materials including oak and long leaf pine from all of the state, bricks made from Wake County Clay, marble from Anson. The Perdue Administration's Department of Cultural Resources got interested in Eave's question, and Wednesday morning the governor and her husband helped unveil the new marker on the mansion's west side bordering Blount Street. Here's what it says:
Official residence, N.C.
governors, it was com-
pleted in 1891 on Burke
Square using prison
labor. Architects, A.G.
Bauer and Samuel Sloan.

It was a lovely morning and the mansion's grounds were spectacular. Docents gave guided tours of the interior as well as the mansion's gardens, and I tagged along momentarily to see what has happened to the grounds where my father once played as a little boy. His parents lived in Greensboro but he was born in 1906 in a home that belonged to his maternal grandparents at the corner of Bloodworth and Jones streets just a block from the mansion. On visits to Raleigh he and other children from the neighborhood now known as Oakwood played on the mansion grounds in the days when there wasn't much in the way of shrubbery or trees. A brick and iron fence long ago brought that practice to a halt, and now towering trees keep the mansion gardens shady and cool on warm spring days. If ever you get the chance to visit, it's well worth the effort.

Ask not for whom the bridge tolls -- it may toll for thee

Ask not for whom the bridge tolls -- it may toll for thee

Virginia Gov. Bob McDonnell has made clear that he wants his state to begin charging tolls when drivers enter Virginia from North Carolina on I-95 to help pay for safety projects on that heavily traveled road, and N.C. DOT Secretary Gene Conti says he is looking forward to working with Virginia to explore options for improving that interstate route. North Carolina already has tolls on I-95 under consideration, and Conti says a two-year study is looking at through-state traffic as well as local use. McDonnell has asked the Federal Highway Administration if his state can start charging a toll of $1 to $2 for motorists to cross the state line.

That's all well and good, but state Senate leader Marc Basnight, D-Dare, says if he'd had his way, North Carolina already would be charging tolls for I-95 use. "I-95 should have been tolled last year," he said during a session with the news media the day before the legislature convened, and "I believe I-95 (tolling) should occur right now -- we need to widen it and create express lanes."

But Basnight also said he does not favor adding tolls to routes that have no other road alternative. Thus, while he supports tolls to pay for a new bridge onto the northern Outer Banks, which has an alternative route, he does not favor tolls to replace the aging Bonner Bridge over Oregon Inlet and providing the only road connection to Hatteras Island.

Basnight was not promising new road tolls in the budget changes lawmakers are developing in Raleigh. But with other toll road projects already underway in North Carolina, drivers on I-95 should get used to the idea of paying tolls at the Virginia border before too much longer. And no one should be surprised if toll booths become a regular feature of heavily used and inadequately maintained interstate highways at other border crossings into South Carolina or Virginia. In tight times and with regular budget shortfalls, tolls are going to start looking better to those who fashion the state's biennial budgets, if not to those who will have to shell out.

Tuesday, May 11, 2010

Late Rep. Ike Andrews' rules for campaigning

Former U.S. Rep. Ike Andrews of Chatham County died Monday in his 84th year, another veteran of World War II's battlefields who went on to a career in politics with an eye toward helping folks back home. Rob Christensen of the News & Observer has an obituary on him here.

Andrews -- who liked to campaign with a button like that of President Dwight Eisenhower ("I like Ike") ¬-- lobbied me a few times to call him "Ike" in headlines instead of his last name, but editors at the Greensboro Daily News where I worked for years always felt that most readers associated the name with the president and supreme commander of allied forces in the big war. He liked to tell folks he was from Bonlee and wait for them to ask where that was. "Just down the road from Bear Creek," he'd say with a grin. Both are in southwest Chatham County.

Andrews was an indefatigable campaigner, as are most successful politicians, and once when I had been following him around on a busy day, I asked him how he was able to keep up the torrid pace of travels, meetings, speeches, interviews, corresponding with constituents, listening to debate, crafting bills and so on. He gave me his two rules for keeping up. Number one, he said, "Always have a little something to eat when the opportunity arises." And second: "Always use the rest room when you get a chance."

Good advice. Goodbye, Ike.

Wednesday, May 05, 2010

Another great John A. story

There's an expression in Raleigh, often used to explain how a political figure came to change his mind on something he had previously and publicly been staked out on pretty well. The term is this: "He had it explained to him so he could understand it."

Gary Pearce, the former aide to Gov. Jim Hunt (and author of a forthcoming biography about the four-term governor of North Carolina) passes along one of those stories in an anecdote he heard yesterday. It's from a friend and it's about the late John A. Williams, a Raleigh businessman who died the other day. John A., as he was known, helped bring order to Hunt's first two terms in office and, among many other things, saw to it that the bureaucracy did what Hunt wanted it to do. No doubt he explained a lot of things so the other person could, at long last, understand it.

The story is classic:

"I was with John A. on a Friday afternoon recapping the week at the legislature. John A got a call from a DOT district engineer about a (proposed) traffic light at an intersection down east. The engineer was explaining about all the traffic counts, and surveys and studies, when John A stopped him with this: 'Let's just hold it right there. I really don't care about all your surveys and studies. All I know is that Senator X wants that light. And the only question I have is whether you put it up or whether your successor puts it up. (pause) By Monday noon would be fine. Nice doing business with you.'

Good news in Tuesday's election: known crooks lost

Good news -- the known crooks lost

Eddie Caldwell, vice president and general counsel of the N.C. Sheriffs' Association in Raleigh, reports good news in Tuesday's primary: the known crooks lost.

Here's an e-mail from Caldwell:

For your information:
--- All six of the candidates for sheriff who are known convicted felons lost their primary election: Davidson, Washington, Wilkes, Avery, McDowell, and Cleveland
Nevertheless, the NC Sheriffs’ Association will continue working with Senator Stan Bingham, the bill sponsor, and the leadership of the North Carolina General Assembly to get the 2010 General Assembly to enact Senate Bill 351, No Felon as Sheriff, to place a constitutional amendment on the November, 2010 ballot asking the voters of North Carolina to approve a constitutional amendment to prohibit convicted felons from serving as sheriff in North Carolina.
Eddie C.

Tuesday, May 04, 2010

Another of Jim Hunt's wise old men dies

When I turned to the obituaries in my N&O this morning and read about the death of John A. Williams -- known for decades in Raleigh as simply "John A." -- I knew there would be many who mourn his passing and others who may just breathe a sigh of relief. Williams, a successful businessman, was not just one of a number of people who helped Jim Hunt become a successful governor in his first two terms in office. He was also one of those who enforced party discipline where it was needed -- and was quite willing to knock a few heads to get things done.

Hunt turned to John A. and Joe Pell during his first term, when the wheels of his government were threatening to come off, and between them the two graybeards brought discipline, order and focus to a young governor's administration. Pell, a nursing home chain operator, and Williams knew what a bright young governor needed -- some wise counsel from old hands, the ability (in Pell) to soothe bruised feelings and keep the political machine running and the backbone (in Williams) to make sure that votes got delivered in the legislature and that what Hunt wanted in the budget wound up there.

Pell was as smooth as John A. was direct. Pell once told me that he had majored in catching hell, and that's pretty much what his job with Hunt was all about. Someone would be mad as fire at Hunt about something, and Joe would call him and they'd talk for a couple of hours and before the day was out, things would be pretty much patched up. Pell died in 1997.

Gary Pearce, Hunt's press secretary at the time, has a good story about John A. here.

Jack Nichols, a Raleigh attorney, had this remembrance:

"My favorite John A story: Ran (Coble)and I were young lawyers at DHR (Department of Human Resources); he had been there almost a year and had recruited me to come work with him for Dr. (Sarah) Morrow. In fact, I was still in my probationary period. The State and DHR got sued in the Willie M. lawsuit. Dr. Morrow convenes a meeting of her Assistant Secretaries, staff, Division Directors, a couple of lawyers from the AG's Office and me and Ran; there must have been 25 people meeting to decide how the State would respond to this lawsuit. The meeting convenes in the 4th Floor Conference Room in the Albemarle Building, which had a series of long conference tables which were easily 30-40 feet in combined length. John A. joins the meeting, Dr. Morrow convenes it, and suggests that everyone around the table introduce themselves and where they worked. John A. added, 'And tell us whether or not your position is exempt.' The people around the table reacted visibly. He had effectively told everyone who was exempt that they would be voting with the Governor and him on the decisions that would be coming out of the meeting. Just one example of how he knew the levers of power and how to get decisions out of State government."

Me, I just liked to listen to him. John A's office in the old Capitol was a quiet place, and every now and again I'd drop in and ask him how things were going. John A. would smile a twinkly, grandfatherly smile, say something like, "Now, you can't print this, but…" and then tell a tale of hardball politics in language that fairly smoldered with heat and radiated satisfaction at giving some poor soul his due.

They'll be telling John A. stories in Raleigh for the next few days, I expect.

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.