NC Supreme Court a 'virtual sinkhole' for environmental law, and it could get worse

The North Carolina Supreme Court has come down against the environment in every significant environmental case it's decided over the past 15 years, a new study has found. (Photo by Alexisrael via Wikimedia Commons.)

The North Carolina Supreme Court has racked up an "extraordinary record of hostility" to the environment in major cases it's considered over the past 15 years -- and with the seven-member court's three Democrats facing tough re-election challenges this year, it could soon get even more inhospitable to environmental concerns.

So concludes a study released this month by John Echeverria, a professor at Vermont Law School and a former attorney for the National Audubon Society and American Rivers. He looked at the judicial electoral process in North Carolina, Wisconsin, Montana and Washington -- states that use either a partisan or nominally non-partisan method for selecting judges for their high courts -- in order to identify changes in the ideological direction of the courts' decisions.

In North Carolina, where high court elections are nominally nonpartisan, Echeverria considered a total of seven environmental law cases during that period. They pertained to the state law designed to limit sediment pollution in waterways, open burning rules, water quality standards, and hog farm regulations.

"Over the last fifteen years, in every instance in which the Court has reviewed a major environmental law issue, the Court has sided with the anti-environmental protection side of the dispute," Echeverria writes.

He notes that the probability of the court ruling against the environment in all seven cases is 1 in 128 -- "long odds indeed." North Carolina's high court, he says, "has become a virtual sinkhole for environmental law."

Echeverria explores the connection between the court's hostility to environmental claims and financing of state judicial elections. In 2004, North Carolina implemented a public financing program that was used by 80 percent of judicial candidates and curbed special-interest spending in campaigns. That program was repealed in 2013, a move that has increased the flow of corporate special-interest dollars into judicial elections.

At the same time, independent groups have increased their spending on North Carolina judicial races. In 2012, super PACs and other outside groups spent nearly $3 million on just one N.C. Supreme Court race, with about 90 percent of the money benefiting conservative justice Paul Newby. In this year's primary, outside groups spent almost $1.3 million to unseat Associate Justice Robin Hudson -- a registered Democrat who was elected in 2006 and who Echeverria found has been the sole dissenter from the court's pattern of weakening environmental protections.

Hudson faced a heated primary challenge from conservative trial judge Eric Levinson and Jeanette Doran, chair of the N.C. Division of Employment Security Board of Review. Doran is also a former staff member of the N.C. Institute for Constitutional Law, a limited-government advocacy group founded and funded by influential conservative money man Art Pope, who as former state budget director played a key role in killing the judicial public financing program.

The primary race featured a controversial ad attacking Justice Hudson for being "soft on child molesters," leading one political observer to call it "perhaps the most despicable advertisement ever aired in the state." That ad was sponsored by Justice for All NC, an outside spending group funded by the Republican State Leadership Committee, which in turn has received major contributions from corporations with a financial stake in cases that may come before the N.C. Supreme Court. They include Koch Industries, the Kansas-based oil and chemical conglomerate that has operations in North Carolina, and North Carolina-based Duke Energy, which currently has a case related to groundwater contamination from its coal ash ponds before the high court after the justices exercised their discretion to take the case away from the N.C. Court of Appeals.

At the same time Justice for All NC was running the controversial ad attacking Hudson, the NC Chamber IE, the independent expenditure arm of the NC Chamber, was running positive ads supporting Doran and Levinson. Koch Industries was also among the companies that contributed to the NC Chamber IE.

Echeverria observes:

An undisclosed subtext of the attacks on Justice Hudson is that she is the single justice on the present Court who has distinguished herself by voting in favor of environmental protections in the cases that have come before her.

In the end, Hudson survived the primary. She is now facing off against Levinson in the general election -- a contest that’s shaping up to be North Carolina's most expensive state court race this year.

Echeverria found that the last time the N.C. Supreme Court handed the environmental side a win was 1998, when a majority of justices rejected a legal challenge to the revocation of an aerial pesticide applicator's license for violating state regulations.

Four years earlier, the court handed down another major environmental ruling in Empire Power Co. v. N.C. Department of Environment, upholding the right of citizens to go to court to protect themselves from air polluters. Reversing the N.C. Court of Appeals, the high court held that the owner of land next to a proposed power plant was entitled under state law to challenge the department's issuance of an air pollution control permit to Duke Power.

But that precedent is now threatened by a similar case involving property owners and environmental groups challenging state's air quality permit for a new cement manufacturing facility in New Hanover County.

Last year an administrative law judge, siding with the state Division of Air Quality, arrived at what Echeverria calls "the novel conclusion" that in order for a person to challenge an air emissions permit he must show how much additional pollution would be produced and what specific injuries would result. The N.C. Environmental Management Commission upheld the judge's ruling, and the plaintiffs filed an appeal in Superior Court. That case could eventually make its way to the N.C. Supreme Court, which would have the chance to reverse its Empire Power ruling.

While Hudson's re-election would be no guarantee that wouldn't happen, her loss would make it even more likely that it would.

"Given the current and likely future makeup of the Court, Justice Hudson would be unlikely to sway the Court in many environmental cases," Echeverria concludes, "but at least she can -- if reelected -- serve as a counterweight to the other justices on the Court who appear to have less sympathy for environmental protections."