Every year, the 6,000 people who live adjacent to the Port of Wilmington, in New Hanover County, are assaulted with hundreds of tons of air pollution: from the concrete plants spewing their ultra-fine dust, the fumigation facilities legally emitting neurotoxins like methyl bromide and phosphine, the ships and trains and tractor-trailers exhaling plumes of diesel fumes.
These 6,000 people – 41% of them nonwhite, 58% of them low-income, census data show – also are beset by PFAS in the Cape Fear River, hazardous waste sites that have leached poisons into the groundwater, and the toxic legacy of old refineries.
This neighborhood is one of hundreds of environmental justice communities across North Carolina – from Waynesville in the mountains to Aberdeen in the Sandhills, Oxford in the Piedmont and Sampson County in the hog country of the Coastal Plain – where people of color and low-income families are disproportionately burdened by pollution.
Many, if not most EJ communities, are home to multiple contamination sources, known as cumulative impacts. After one pollution source – say, a quarry – moves in, then comes another. The asphalt and concrete plants arrive, along with the diesel trucks and heavier traffic, clustering pollution in a single neighborhood.
Undoing these toxic legacies is difficult, but President Biden’s administration, under its Justice40 program, as well as Gov. Roy Cooper’s, are focusing on preventing further harm and directing funds to long-ignored EJ communities.
A new plan for North Carolina
On Tuesday Gov. Cooper signed Executive Order 292, “Advancing Environmental Justice for North Carolina.” Cooper said EO 292 “takes a whole of government approach that brings more communication, more listening and more transparency.
- The order creates a new 22-member EJ advisory council within the governor’s office, moving and expanding the Environmental Justice & Equity Advisory Board that is currently under the N.C. Department of Environmental Quality. Half of the new board’s membership will be appointed by the governor, with the balance appointed by cabinet secretaries.
The board, created by former DEQ Secretary Michael Regan, has advised only that agency, to the exclusion of others that are also accountable for environmental issues: The Departments of Transportation, Health and Human Services, Commerce and Natural and Cultural Resources.
“We needed all the cabinet agencies to participate,” Gov. Cooper said.
Sherri White-Williamson, a member of the existing DEQ EJ advisory board, is also director of Environmental Justice Strategy for the N.C. Conservation Network. She also co-founded the nonprofit EJCAN, a community advocacy group based in Clinton, in Sampson County.
“People who are poor, brown, Black and Indigenous have suffered from a lack of access to the levers of power,” White-Williamson said at the signing ceremony. “This is an important and welcomed step. There remains much more that North Carolina can do to protect frontline communities from outsized exposures to pollution. Solving these problems will require building greater trust and transparency between state government and impacted communities. And this new board offers an opportunity and perhaps an obligation to do just that.”
The Executive Order contains several other provisions:
- The new advisory council is required to work with Historically Black Colleges and Universities to research cumulative environmental impacts on communities.
- Each cabinet agency must draft at least three EJ goals and measurable outcomes by mid-February 2024. These goals will be subject to a formal public comment period.
- A new Environmental Justice Hub website will be developed by the Department of Information Technology. It will host a mapping tool, essentially an upgraded version of DEQ’s Community Mapping System that was required as part of a 2018 federal civil rights settlement with environmental groups. (The complaint was filed against the McCrory administration and settled under Cooper’s.)
The enhanced tool will show where pollution sources are concentrated, along with census data, climate stressors, health data, and “sensitive receptors” – churches, schools, daycares and affordable housing communities. The website will also list grant opportunities for local and tribal governments and nonprofit groups. The tool is scheduled to be published within a year.
“Under Gov. Cooper’s leadership, we have begun the work to address inequities from decades of decisions that were made without meaningful input from minority communities in our state,” DEQ Secretary Elizabeth Biser said. “This order will help us gather information on cumulative impacts and develop recommendations on how to address them.”
Enforcement challenges loom
Even when fully developed, the mapping tool will still have limitations in determining cumulative impacts. The Department of Agriculture – whose commissioner is elected, not appointed – legally keeps secret the locations of thousands of gigantic poultry operations. Many of those operations are co-located at enormous swine facilities, further burdening neighbors with stench, contaminated groundwater and air pollution.
Environmental groups have filed eight Title VI complaints – named after its relevant section of the federal Civil Rights Act – with the EPA against DEQ since 2017, when Cooper became governor.
The EPA rejected four of them, including one about permitting for the now-defunct Atlantic Coast Pipeline. Of the four whose decisions are still pending, three involve the permitting – or lack thereof – for industrialized poultry or hog operations, federal records show.
The fourth pending complaint was filed by Black residents in Alamance County over the agency’s issuance of an air quality permit to Carolina Sunrock for an asphalt plant.
While Executive Orders can require agencies to act on directives from the governor, they do not carry the force of law. Statutes about environmental permitting, for example, are beyond the governor’s authority.
What we’re putting in place will be hard to stop. It will create a synergy that lasts beyond this administration
Over the past 12 years, state lawmakers have eroded environmental protections, not strengthened them. For example, House Bill 600, which recently became law, prohibits DEQ from denying a hog waste or swine gas permit application on civil rights grounds. Gov. Cooper vetoed the bill, but the legislature overrode it.
Those legislative constraints are behind language in the Executive Order that encourages – but doesn’t require – each Cabinet agency to consider public health impacts in their “permitting, policy actions and agency programs to the furthest extent permissible by law.”
However, there is a legal dissent about DEQ’s permitting powers. The agency argues it is hamstrung by state law to weigh cumulative impacts in permitting; those considerations are limited to landfills and similar facilities regulated under the Solid Waste Act.
But environmental lawyers and advocates disagree. At a March 2023 meeting of the Environmental Justice & Equity Advisory Board, Jasmine Washington, an attorney with the Southern Environmental Law Center told members that “there is a lack of political drive” at DEQ and the EPA to consider cumulative impacts. “They’ve made small steps along the way, but nothing to bring it across the finish line,” Washington said.
Washington told the board that DEQ is required to consider Title VI in permitting decisions and that those legal obligations are “separate and distinct from environmental law.”
At that same meeting, Rañia Masri, co-director of organizing and policy for the N.C. Environmental Justice Network, urged the board to use its advisory power to its fullest, especially concerning cumulative impacts.
“What will you do when DEQ ignores you?” Masri said. “We need you to do more as a board.”
2024 elections likely to have an impact
There are 14 months left in Gov. Cooper’s final term. If Josh Stein, the Democratic frontrunner, should win the gubernatorial race, the executive branch’s environmental policies at minimum, would likely remain the same.
If either leading Republican candidate wins, buttressed by a GOP majority in the legislature, then it’s almost certain environmental laws will be further weakened: Lt. Gov. Mark Robinson, who is running for the top seat, is a climate change denier. His likely primary opponent, State Treasurer Dale Folwell, has publicly opposed using “environmental, social and governance” standards, known as ESG, to choose investments for the state pension fund.
Gov. Cooper is planning for Executive Order 292 to set a precedent, to take on a life of its own before he leaves office.
“We can accomplish a lot,” Cooper said. “The data and mapping will show us what we’ve been hearing from communities. What we’re putting in place will be hard to stop. It will create a synergy that lasts beyond this administration.”