NC Environmental Justice Network and NC NAACP Challenge Racially Discriminatory Swine Waste Permit

The fight to bring racial justice to the forefront of environmental protections continues. This morning, the North Carolina Environmental Justice Network (NCEJN) and the North Carolina State Conference of the NAACP (NC NAACP) filed a motion to intervene in an administrative proceeding between the North Carolina Farm Bureau and the North Carolina Department of Environmental Quality (DEQ) regarding DEQ’s 2019 Swine General Permit. NCEJN and NC NAACP argue that DEQ acted arbitrarily and capriciously, and failed to follow state and federal law, by refusing to include any measures in the permit to protect communities of color from the disproportionate harms they suffer from industrial hog facilities allowed to operate under the General Permit.

In 2014, NCEJN and others filed a Title VI civil rights complaint with the U.S Environmental Protection Agency (EPA) after DEQ renewed the state swine permit without anti-discriminatory protections. People of color are disproportionately burdened by the waste of the hog industry, and particularly by the outdated lagoon-and-sprayfield system of disposal. In early 2017, the EPA warned DEQ of its “deep concern about the possibility that African Americans, Latinos, and Native Americans have been subjected to discrimination as the result of NC DEQ’s operation of the Swine Waste General Permit program.”

Despite this warning, when the new Swine General Permit was issued in April, it did not contain any of the anti-discriminatory protections which communities have asked for throughout the Title VI complaint process, as well as during public comment periods for the draft permit. Still, the Farm Bureau, which also participated in the public comment period, attacked DEQ for its participation in the Title VI process, calling the permit “tainted” by the input of affected communities.

The Swine General Permit, currently scheduled to go into effect on October 1, is woefully inadequate in actually delivering anti-discriminatory outcomes. “The process DEQ followed was fine,” said Ayo Wilson, NCEJN’s Co-Director, “but the agency’s refusal to comply with its obligations under state and federal anti-discrimination law is unacceptable.”

“North Carolinians have already waited almost two decades for DEQ to do something about the fact that industrial swine facilities burden our communities of color twice as much as they do white residents,” said Dr. Anthony Spearman, the NC-NAACP’s president. “We aren’t waiting any longer.”

Read the Motion to Intervene.  The comments submitted by NC EJN, the NC NAACP, and other environmental justice groups were also attached to the motion, and are available here and here.

Community & Environmental Groups File Constitutional Challenge to Restrictions on Nuisance Remedy

 

On Juneteenth, 2019, the Rural Empowerment Association for Community Help (REACH), North Carolina Environmental Justice Network, Waterkeeper Alliance and Winyah Rivers Alliance filed suit in Wake County Superior Court challenging amendments to NC’s so-called “Right to Farm Act” which the General Assembly passed over the Governor’s veto in 2017 and 2018.

Devon Hall, REACH’s co-founder and Program Manager, lives near more than two dozen industrial hog operations. “This is my family’s homeplace,” Mr. Hall said. “Although I am not a plaintiff in the ongoing nuisance case, I believe that the North Carolina General Assembly overstepped its constitutional grounds to block me or anyone else from seeking justice in court from anyone that has caused unreasonable harm to a neighbor.” Mr. Hall adds, “How is it that the state can take away my community’s ability to protect our homes and health in this way?  How can that be right?”

Read the full complaint here: REACH et al v State of NC COMPLAINT-Juneteenth 2019

Chambers Center files Amicus Brief to the Fourth Circuit Court of Appeals on behalf of the NCEJN & REACH

 

Chambers Center clients North Carolina Environmental Justice Network (NCEJN) and Rural Empowerment Association for Community Help (REACH) filed an amicus brief that provided important racial justice context and legal argument in the pork industry’s appeal of the jury verdict in the first industrial hog nuisance case, which awarded over $50 million to 21 African American plaintiffs (which was reduced under NC’s law to $3.25).

 

 

“Amici have a critical interest in this case and in holding the pork industry accountable for the environmental, racial, and quality of life adversities its operations impose on nearby residents. Despite their efforts and the overwhelming anecdotal, scientific, and environmental evidence of the discriminatory harms on surrounding communities, neither the industry nor the state administrators responsible for regulating it have taken the necessary steps to address the adverse effects. Only the court, through these nuisance claims filed by ordinary citizens, has successfully demanded accountability.”

Read the full brief here: NCEJN REACH amicus brief-filed

May 1 Educators’ Message Soon to Be Amplified by Leandro Experts

If the May 1 action in Support for Public Schools doesn’t convince North Carolina  administrators and policy makers to change course on our education policies, maybe the report from the court-appointed expert in the now 25-year old  Leandro litigation—due at the end of May— will. In that groundbreaking case, the North Carolina Supreme Court ruled, first in 1997 and again in 2004, that students have a constitutional right to a sound basic education, and that the State was liable for violating that right. The next 14 years have been spent, with minimal success, trying to hold the State accountable to develop and implement a remedy. Meanwhile, another generation of students were deprived of their fundamental educational rights.

But last spring, the judge overseeing the case appointed an expert consultant to assist the court in developing a plan to bring the State into compliance with its constitutional obligation to provide a sound, basic education to every child in our public schools. WestEd, a national nonpartisan, nonprofit education research, development, and service agency, has worked for the last year in collaboration with The Friday Institute for Educational Innovation at North Carolina State University and the Learning Policy Institute, collecting and analyzing information for its report to the court, entitled Sound Basic Education for All: An Action Plan for North Carolina.  The final report is scheduled to be presented at the end of May.

The WestEd team, with substantial input from school leaders and administrators, teachers, state education agencies and officials, and the Governor’s Commission on Access to a Sound Basic Education, conducted seven research studies on North Carolina’s compliance with  the four core Leandrotenets: 1) trained and certified teachers in all classrooms; 2) effective administrative leadership in all schools; 3) adequate resources to meet the needs of children in all schools, and 4) an assessment system that demonstrates the existence of adequate progress and achievement.  Based on the monthly status updates provided to the court, it appears likely that the message from demonstrators on May 1 will be repeated in the WestEd report: 1) hire support staff—particularly social workers, counselors, nurses and psychologists; 2) provide better pay, benefits and professionalism to our teachers and school leaders; and 3) change the policies and practices regarding funding and resource allocation that entrench the inequities burdening low-wealth students and high poverty schools.

If the report WestEd sends the court at the end of May is anything like what it provided to the Kansas state legislature in 2018, it will include everything from specific dollar amounts needed to address the inadequacy and inequity of North Carolina’s current system to foundational policy recommendations. Based on information in their monthly reports, the WestEd team has scrutinized a range of factors related to equity and adequacy, including the ability to develop, recruit, support, and retain high quality teachers and principals, the impacts of North Carolina’s charter school system; overwhelmingly disproportionate representation of African American and Latinx students in high-poverty, under-resourced schools; and letter grade school assessment model.

We shouldn’t need another mass demonstration to tell our General Assembly to do what the constitution and the Leandro decisions require and what has been needed to save our public schools for more than a decade. And it shouldn’t take a national school finance expert report to understand that if a government truly values public education, it must equitably provide the necessary resources to support and retain effective school leaders, teachers and support staff and treat them like the professionals they are. There simply is no other way to address the critical needs and challenges facing the over 400,000 children in North Carolina’s high poverty schools. Nor is there any other way for the State to comply with our constitution.

Comments on NC Dept of Environmental Quality’s Swine General Permit, Submitted on Behalf of REACH, NCEJN, Waterkeeper Alliance, Crystal Coast Waterkeeper and the North Carolina Conference of the NAACP

On March 4, the Chambers Center, Earthjustice, and the Yale School of Forestry & Environmental Studies and the Yale School of Public Health submitted comments to the North Carolina Department of Environmental Quality (“DEQ”) on the Draft  Swine Waste Management Permit currently under consideration. These comments were submitted on behalf of the North Carolina Environmental Justice Network (NCEJN), the Rural Empowerment Association for Community Help (REACH) and Waterkeeper Alliance, Inc., Crystal Coast Waterkeeper, and the North Carolina State Conference of the NAACP.

While these comments conisdered all aspects of the draft permit, our focus was on the racially discriminatory impacts of the industrial swine operations and DEQ’s failure to fulfill its obligations under Title VI of the Civil Rights Acr of 1964 in permitting these operations. As noted in the introduction of our comments:

Those impacts include air and water pollution emanating from the open pits of waste and sprayfields in which DEQ-permitted swine operations store and disperse billions of gallons of feces, urine and other waste. The consequences of this system are not just environmental, but also racially discriminatory, because they disproportionately burden non-white North Carolinians.

DEQ continues violating Title VI because the agency has failed to exercise its authority to provide adequate protections for the health and welfare of surrounding communities and, knowing the risks and impacts of the lagoon and sprayfield system in eastern North Carolina, failed to exercise its duty to include terms to identify and protect those communities in the draft Swine General Permit. We urge DEQ to begin planning now for the transition of North Carolina’s swine industry from the antiquated lagoon and sprayfield system to a more sustainable foundation for farming in the state.

Read the full text of the comments, and the attached exhibits:

In addition to signing on to these comments, the NC NAACP also submitted a separate comment letter.

State Supreme Court rejects Halifax educational equity lawsuit

                               Halifax County education advocates following argument at the NC Supreme Court

On December 21, in  Silver et al v. Halifax County Board of Commissioners  the North Carolina Supreme Court ruled that boards of county commissioners have no responsibility under the state constitution to provide the opportunity for every child in North Carolina to obtain a sound basic education, despite the critical role counties play in providing educational funding and resources.

The Court’s 1997 decision in Leandro v. State recognized the constitutional right to a sound basic education. Seven years later, the court reaffirmed this fundamental right. Today’s ruling undercuts the scope and impact of the Leandro decisions and the goal of educational equity in our state.

In Silver, the plaintiffs alleged that the education funding and policy decisions of the Halifax County Board of Commissioners violated the constitutional right recognized in Leandro. The lower courts rejected that claim, asserting that county boards of commissioners have no responsibility to execute their education-related duties in a manner compliant with the constitution. The state supreme court unanimously upheld the conclusion that only the State bears any constitutional obligations regarding education, declaring:

[N]o express provision requires boards of county commissioners to provide for or preserve any rights relating to education. . . . Complications born of the incompetence or obstinance of a county board of county commissioners relating to the finances of local education are the “ultimate responsibility” of the State, which must step in and ameliorate the errors. . . . to the extent that a county, as an agency of the State, hinders the opportunity for children to receive a sound basic education, it is the State’s constitutional burden to take corrective action.

Halifax County has three separate school districts serving fewer than 7,000 students. Weldon City Schools has less than 1,000 students, 94% of whom are African American. Halifax County Public Schools and Roanoke Rapids Graded School District each have less than 3,000 students, but 65% of Roanoke Rapids’ students are white, while the county district’s students are 85% black. The plaintiffs allege that the educational resources and outcomes of the three districts demonstrate that the county board of commissioners is obstructing the opportunity for all students in the county to receive a sound basic education.

The Silver plaintiffs are parents and guardians of five students; the Coalition for Education and Economic Security (CEES), a community advocacy organization; and the Halifax branch of the NAACP. They filed suit against the county in August 2015, alleging the commissioners’ continued maintenance of the three school districts violates the state constitutional right of students in Halifax County to a sound basic education.
CEES Chairperson Rebecca Copeland said, “Although we cannot understand how the court could hold that the constitution does not apply to county governments, we are undeterred in our fight for educational equity and quality in Halifax County.”

David Harvey, President of the NAACP branch, expressed disappointment in the court’s decision: “We have been advocating for all students in Halifax County for almost a decade, and this lawsuit was our last resort after years of trying to work with our county leaders for change. But we will not give up. If our Supreme Court says we have to sue the State for the County’s failures, then that’s what we will do.”

The plaintiffs are represented by the Julius L. Chambers Center for Civil Rights, and also by the Lawyers Committee for Civil Rights Under Law and Latham & Watkins. Amicus briefs were filed by Duke Children’s law Clinic, Advocates for Children’s Services (Legal Aid) and Public Schools First NC; and the NC Advocates for Justice.

Amicus brief filed in Greensboro police body-camera gag order appeal

The Chambers Center coordinated the filing of an amicus brief on behalf of 14 community-based organizations, the City of Durham, and the ACLU-NC Legal Foundation filed an amicus brief this week in support of an appeal by the City of Greensboro challenging a court order prohibiting council members from discussing police body-camera video with the public. These community organizations are all deeply committed to the promotion of racial equity, social justice, and civic engagement, and are also dedicated to meaningful public participation, transparency, and honest communications with local government.  They argued that the gag order violates the North Carolina Constitutional guarantees that “All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole,” and “The people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof.” If public officials are prohibited from freely communicating with the public, there can be no accountability for those officials, thereby depriving the public of their fundamental right to ensure that they are meaningfully represented.

On September 10, 2017, a Greensboro Police Department (GPD) officer tased Aaron Garrett, a young black man. The interaction was captured on a police body camera. Because the issue of racialized police practices and discriminatory police misconduct has been a priority for community advocates in Greensboro for decades, and in response to pressure from the public, the City Council petitioned the Guilford County Superior Court to release the police body camera footage of the incident.  The court granted the request prohibited council members from discussing the body camera footage with their constituents or any member of the public.

After all criminal matters related to the incident were resolved, the City Council asked the court to lift the gag order. The court refused, continuing to prevent the Council members from discussing the details of this critical public issue with the very people who empowered them to serve as their representatives. The City appealed, and the  amicus brief was filed in support of the City.

The organizations filing the brief are: Beloved Community Center Of Greensboro, the League Of Women Voters of the Piedmont Triad, Reclaiming Democracy, Roch Smith Jr., the Guilford Anti-Racism Alliance, The Homeless Union Of Greensboro, Triad City Beat, the Carolina Peacemaker, the Pulpit Forum of Greensboro and Vicinity, Democracy Greensboro, The UNC-G Chapter of the American Association of University Professors, St. Barnabas Episcopal Church, Community Play!/All Stars Alliance, the American Civil Liberties Union of North Carolina Legal Foundation, NC Warn, and the City of Durham.

This brief was a collaborative effort among the Chambers Center, Chris Brook and Sneha Shah from the NC-ACLU and Cheyenne Chambers and Luke Largess from the Tin Fulton law firm in Charlotte; as well as extraordinary community organizing by our longtime colleague, the indefatigable Lewis Pitts.

Chambers Center Releases Duplin County Environmental Justice Report


This report is the second in a series looking at the impacts of exclusion in Duplin County, North Carolina. The first concentrated on education advocacy and equity in the county. This one examines environmental justice, and like the previous report is based both on empirical research and engagement by community advocates and the lawyers supporting their efforts. While environmental justice encompasses a range of hazardous and unwanted land uses disproportionately located in excluded communities, in Duplin the most significant of those are industrial animal feeding operations. They are therefore the focus of this report.
Duplin EJ report- FINAL

Environmental Justice Communities and Advocates Call on State to Take Immediate Action on Industrial Swine and Poultry Operations

RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP
NC ENVIRONMENTAL JUSTICE NETWORK • SOUTHERN ENVIRONMENTAL LAW CENTER
NC CONSERVATION NETWORK • JULIUS L. CHAMBERS CENTER FOR CIVIL RIGHTS
COASTAL CAROLINA RIVERWATCH • CRYSTAL COAST WATERKEEPER
WHITE OAK-NEW RIVERKEEPER ALLIANCE • PUBLIC JUSTICE
CENTER FOR BIOLOGICAL DIVERSITY • NATURAL RESOURCES DEFENSE COUNCIL

SWINE AND POULTRY ANIMAL OPERATIONS RECOMMENDATIONS FOR THE STATE OF NORTH CAROLINA

North Carolina should take a number of immediate steps to address the historic impacts of Swine and Poultry Feeding Operations on low-income communities and communities of color in the wake of major natural disasters including Hurricane Florence. We recommend that North Carolina:

1. Conduct a transparent and objective review of all swine waste lagoons impacted by Hurricane Florence and subsequent major rain events, including those that overtopped, sustained structural damage, were inundated, and reached or exceeded freeboard limits.
2. Begin the transition of all swine and poultry waste management systems to Environmentally Superior Technology.
3. Appoint a Drinking Water Task Force to recommend ways for the state to ensure safe drinking water for all affected by floodwaters near swine and poultry waste management systems. The Task Force Should:
a. Include community representatives, public health and drinking water experts, and the Secretaries of the NC Department of Environmental Quality and the NC Department of Health and Human Services.
b. Identify long-term solutions for drinking water access and protection, improve protections to drinking water from flooding and runoff, and make provisions for community-based monitoring and notification.
4. Appoint an Animal Feeding Operations Task Force to oversee the transition of swine animal feeding operations in eastern North Carolina to Environmentally Superior Technologies (ESTs). The Task Force should:
a. Conduct an objective study of the safety and integrity of all remaining hog waste lagoons in the state.
b. Conduct an objective and transparent cataloging of the hog operations that have been closed but where waste lagoons remain.

Over the next year, North Carolina should take the following steps:

1. Deny permit renewals for any swine operations that do not have a plan for transitioning from lagoons/sprayfields to the implementation of Environmentally Superior Technologies (EST), as described by 15A N.C. Admin. Code 2T.1307.
2. Remove all animal waste management systems out of the 100-year floodplain.
3. Require that all animal waste lagoons be adequately decommissioned within 6 months of an operation closing.
4. Update the regulatory regime applicable to poultry operations in the State in order to protect communities and natural resources. Such updated measures should, at a minimum:
a) Require public disclosure of the location, size, and waste management practices for all poultry operations located in the state;
b) Require a permit for poultry operations using a dry animal waste management system; and
c) Prohibit the construction of new poultry barns and waste management systems in the 100-year floodplain.