A law signed in March gives regulators a pass on new air rules for gas drilling, so long as regulators find that current rules are strong enough.
By Gabe Rivin
A wide-reaching environmental law, signed in March by Gov. Pat McCrory, has eased the state’s responsibility to regulate air pollution from natural gas drilling. While environmentalists chided the law, saying that it’s meant to undercut health protections for residents, state environmental staff said it cleared away duplicative and unnecessary requirements.
The law, HB 157, raced through the General Assembly in mid-March, gaining McCrory’s signature just six days after it was first approved by a House committee. The law addresses a number of areas, including solid waste management and North Carolina’s Energy Policy Council. It also includes a provision that rewrites the state’s requirements for air pollution caused by gas drilling.
Under SB 820, the 2012 law that set North Carolina on course to allow drilling, the state’s Environmental Management Commission was required to develop rules that control toxic air pollution from drilling.
Such controls are significant because drilling can produce a large amount of air pollution, affecting both nearby residents and, in some cases, entire regions. This pollution can include volatile organic compounds such as benzene, a known carcinogen. These compounds often contribute to the formation of smog, which can cause respiratory problems among humans.
Under HB 157, the recently signed law, the EMC is not strictly required to develop air rules. Instead, the commission is only obligated to develop rules if it finds that current rules, at the state and federal level, are “inadequate to protect public health.”
A challenge to lawsuits?
Environmentalists argue that these rules are indeed inadequate. Therese Vick, an anti-drilling activist with the Blue Ridge Environmental Defense League, said that HB 157 proves that the state government isn’t interested in protecting citizens’ health.
The bill “makes it clear as crystal that that the [Department of Environment and Natural Resources] and Division of Air Quality have no intention of protecting public health in communities that could be affected by fracking,” she said.
Vick’s group has been in a longstanding fight with state agencies over these rules. In September 2013, the group sent a letter to the EMC that laid out the case for rules, in addition to their concerns about air pollution. The EMC didn’t respond, Vick said, which is why last August Blue Ridge filed a more formal legal petition with the Mining and Energy Commission.
The Mining and Energy Commission is the primary agency developing rules for gas drilling. The rules cover everything from well casings to the controversial process of hydraulic fracturing, or fracking.
But the commission doesn’t have legal power to develop air rules. That responsibility, under 2012’s drilling law, lay with the Environmental Management Commission, the agency that had ignored Blue Ridge’s request. The MEC cited its lack of power when it denied the group’s petition last December.
Rep. Pricey Harrison (D-Greensboro) said that this year’s law was intended to curb such legal actions.
But Rep. Mike Hager (R-Rutherfordton), the House majority leader, disagreed. Hager, who originally introduced the provision as an amendment in a separate bill, said the provision was not intended to blunt petitions and lawsuits.
Instead, Hager said the provision acknowledges that the state already has air rules in place, including federal rules that the state automatically adopts as its own.
“Why reinvent the wheel if we don’t have to?” Hager said. “We don’t want to be inefficient.”
The strength of current rules
Tom Mather, a spokesman for the Department of Environment and Natural Resources, agreed that additional, drilling-specific rules are unnecessary.
“The Environmental Management Commission already has broad authority to adopt rules for regulating air toxics and other air pollutants under existing state law,” he said in an email. “Existing laws do not specify that the EMC should adopt rules for other industry types, such as paper mills, textile plants, furniture plants and hundreds of other types of facilities.”
Mather argued HB 157 doesn’t prevent the EMC from adopting new rules. He also cited the state’s use of rules from the U.S. Environmental Protection Agency, and said that department staff believe the current regulatory system is strong enough to address gas drilling.
But that’s up for debate. Federal rules only cover a portion of drilling’s air pollution, and drillers could gain exemptions in North Carolina from these rules.
A committee within the Mining and Energy Commission is now looking at these issues and will provide recommendations to the Environmental Management Commission, according to Vik Rao, the chairman of the MEC.
Rao said that this year’s law doesn’t change the work that his commission is doing. Rao added that he formed the air pollution committee in response to Blue Ridge Environmental Defense League’s petition, and that environmentalists could still pursue legal action to force the development of new air rules.
“I don’t think this changes anything BREDL does,” he said. “It just raises the bar. In their petition, BREDL would have to point out the inadequacy of state and federal regulations.”
As of last month, energy developers can apply to drill in North Carolina. But Rao said he’s unaware of any applications, and he doesn’t expect any until the industry has a clearer picture of the state’s oil and gas resources.
Rose Hoban contributed reporting to this story.