Here's a key point we have outstanding: Does this sale trigger the North Carolina Environmental Policy Act of 1971, commonly known as SEPA.
Attorneys for the Board of Trustees and the Foundation argued that the sale itself did not trigger SEPA. SEPA includes two very broad categories that cover virtually every state action: “any action involving the expenditure of public moneys” and “any action involving . . . use of public land” that may negatively affect the environment.
We know it is public land. That appears to be no longer in dispute.
Is sale a use of public land? In a common sense evaluation, it is clear that sale is the ultimate use of public land. It is being used to get money. The money would not flow if the land were not sold. Though SEPA may not directly include the term “sale” in its text, the term “any action” certainly does include sale. Sale of land certainly falls under the descriptor “any action.”
Will the sale negatively affect the environment? Yes. By the buyer's own admission, there will be some development. How much remains to be seen, but more intense land use would clearly negatively affect the environment of this state. As such, the act of sale by the Board of Trustees would set into motion more intense land use, negatively affecting the environment, which would not happen in the absence of a sale. Thus, the action of sale is directly traceable to negative impacts to the environment of the state.
We hope the Court will concur that SEPA does apply to the sale. If it does, the Board of Trustees would have to conduct an Environmental Assessment (EA). Unless they can show a Finding of No Significant Impact (FONSI), they will have to conduct a full Environmental Impact Statement (EIS). If the Court finds that sale of public land into private hands with no enforceable restrictions (not assurances) on more intense land use, this would set a very bad precedent and leave all state lands open to sale with no Environmental Assessment (EA).
Why are they so adamant against doing an an Environmental Assessment (EA), which is a relatively easy process? They probably already know they can't show a Finding of No Significant Impact (FONSI). That will trigger a full Environmental Impact Statement (EIS), which would reveal the true consequences of this sale.
Indy Week • 201 W. Main St., Suite 101, Durham, NC 27701 • phone 919-286-1972 • fax 919-286-4274
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