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Can’t afford to lose

N.C. Senate bill would require those who file unsuccessful lawsuits to pay state’s attorneys’ fees

The N.C. Senate has transformed a one-page House bill on gravel-transport regulation into 54 pages of omnibus provisions that would, among other things, raise the stakes for conservationists seeking to halt state transportation projects.rulesregulationssatmp

House Bill 765 includes many proposals affecting the environment, including two that weaken stormwater and air-quality monitoring regulations and a third that repeals a requirement that manufacturers recycle computers and televisions discarded by consumers. But, according to Southern Environmental Law Center attorney Kym Hunter, there’s one that particularly targets the efficacy of groups protesting N.C. infrastructure projects.

Section 1.4 of the bill requires the attorneys of any plaintiff filing an unsuccessful civil environmental-impact suit challenging North Carolina’s permitting or construction activities to reimburse the state’s legal fees.

“We’re very troubled by that (proposal). It would be a big risk to file a lawsuit,” Hunter says. The legislation, she said, “creates a big disincentive on small groups (contesting state actions) and they are the only ones left to step in.”

The Southern Environmental Law Center has sued state and federal transportation agencies on behalf of three environmental groups protesting construction of the Monroe Bypass, a 19.7-mile, $840 million proposed toll road running north of and parallel to U.S. Highway 74 in Union County. The center first filed suit in November 2010, saying the N.C. Department of Transportation ignored lower cost solutions to alleviating traffic on I-74 and misled the public about the true impacts the bypass would have on air and water quality. They contended the agency illegally biased the outcome of its environmental study on the proposed bypass by using data that assumed the highway already existed when it assessed the impacts of a “no build” option.

A federal judge sided with the transportation agencies in October 2011, but the decision was overturned in May 2012 when the 4th U.S. Circuit Court of Appeals said the N.C. DOT and Federal Highway Administration failed to disclose the “underlying assumptions” of the environmental study and “falsely” responded to public concerns about data used to estimate traffic flow. The agencies then issued a revised report stating that the findings reached by the original report were substantially correct.

The SELC filed another suit in mid-2014, challenging what it calls “the latest inadequate review of impacts” from the project. A couple of months ago the groups filed a motion in federal court to temporarily halt the project after the N.C. DOT gave the go-ahead to its contractor, Monroe Bypass Constructors, to continue construction following the issuance of final environmental permits.

Both the lawsuit and motion are still under review, Hunter said.

The organizations believe that traffic congestion on U.S. 74 could be alleviated by less-costly methods that would displace fewer landowners and inflict less environmental damage. Several Union County towns have agreed, passing resolutions asking the state to look at alternatives to the bypass. The N.C. DOT says the project is necessary to ease congestion on Interstate 74 in and around Monroe, as well as provide a high-speed alternative route from Charlotte to the southeast portion of the state.

The SELC is representing Clean Air Carolina, the Yadkin Riverkeeper, and the N.C. Wildlife Federation.

Will Scott, who runs the nonprofit Yadkin Riverkeeper organization, says Section 1.4 of the N.C. Senate’s version of HB 765 would put a “big chill” on the ability of “citizens to raise concerns about the environmental impact of state actions” in the future.

He said he feels the proposed law singles out groups such as his, citing the success of environmental groups in “holding the state accountable” in addressing pollution leaks from N.C. coal ash dumps. In May, Charlotte-based Duke Energy Corp. pleaded guilty to nine criminal violations of the Clean Water Act at several of its N.C. plants. The company agreed to pay a $68 million criminal fine and spend $34 million on environmental projects and land conservation to benefit rivers and wetlands in North Carolina and Virginia.

Local conservation groups have been effective in other areas. Clean Air Carolina and the Catawba Riverkeeper Foundation, represented by the SELC, have effectively halted N.C. DOT’s plans for the Garden Parkway, a proposed 21-mile, $900 million toll road leading from Interstate 485 near Charlotte Douglas International Airport to Interstate 85 west of Gastonia. The groups filed suit in 2012 in federal court, challenging the transportation agency’s environmental documentation. Last March, Chief U.S. District Judge James Dever granted a summary judgment in the SELC’s favor, stating the N.C.DOT had used the same data in its environmental impact statement to analyze traffic forecasts and the effects of either building or not building the road. In essence, the option outlined under the “no build” scenario was based on data that assumed the parkway had been constructed.

And just last month, the N.C.DOT settled with SELC-represented groups after years of litigation over the state’s plans to replace the aging Bonner Bridge in the Outer Banks. The settlement includes ceasing work on a 2.4-mile bridge within the Pea Island National Wildlife Refuge.

Democratic N.C. Sen. Joel Ford of Mecklenburg County, who voted against the Senate version of the bill, said he was not particularly happy with the provision placing the burden of state legal fees on environmental groups if they lose a case. “It doesn’t seem consistent with anything else we’ve done in the state regarding legal fees,” he said.

N.C. Sen. Stan Bingham, a Republican representing Davidson and Montgomery counties, voted in favor of HB 765. But, he said, he had reservations about Section 1B.

“I had heartburn with it,” he said. “That one in particular concerned me.” Bingham said he voted affirmatively to help pass parts of the bill he favored. “As always, you can’t get everything you wish for,” he said, adding that parts of the proposed legislation may be repealed.

The bill is slated to return the N.C. House for review. Several other senators, both those who voted in favor and against the bill, did not return requests for comment.

Section 1B may also face legal scrutiny over U.S. constitutional rights—such as the due process of law, said Hunter. Then there’s the federal protection of the right to petition the government for redress of grievances.

“There is a possible First Amendment problem,” said Michael Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law and director of the Program in Law and Government at UNC Chapel Hill. “This (proposed) law might chill or prevent people from pursuing certain claims because they cannot afford to lose.”

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