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Representatives override Perdue's veto of Senate Bill 781, which reforms the state's regulatory system. Up next: Senate Bill 709, which clears the way for fracking.

Legislature handcuffs regulators; fate of fracking bill uncertain 

Fracking opponents protested a potential House override of Gov. Perdue's veto of Senate Bill 709.

Photo by Kirk Ross

Fracking opponents protested a potential House override of Gov. Perdue's veto of Senate Bill 709.

After taking a bruising in the prior session, advocates for the environment weren't especially upbeat about the prospects for sustaining Gov. Bev Perdue's veto of two key pieces of legislation: Senate Bill 781, which reforms the state's regulatory system, and Senate Bill 709, which clears the way for fracking for natural gas inland and drilling for it offshore.

Last week the North Carolina Senate overwhelmingly approved overrides of the two bills, which are among the 15 pieces of legislation Perdue vetoed this session, the most since veto power was established in 1996. Speculation turned this week to the House and the Democratic caucus' increasingly fragile four-vote cushion.

As the chambers settled into session Monday, representatives erased any doubts about the direction of regulatory reform, overriding Perdue's veto by a vote of 76-42. Among the nine Democrats who crossed over to oppose the governor were members of the same group that sided with Republicans in the budget battle. These included Reps. Dewey Hill and Dan Brisson, who appear ready to switch parties (they voted with the GOP the rest of the day), and Rep. Bill Owens, who, despite giving a speech saying he would vote against the override, asked to officially change his vote after the fact and joined the winning side.

But even with the post-tally defection, the vote was close enough to sustaining the veto (three-fifths of those present) that it offered some hope that the fate of S709—the Energy Jobs Act—might be different. It did not come up for a vote, a sign the votes may not be there, but was added to Tuesday's calendar along with several other vetoed bills scheduled for reconsideration under the heading "unfinished business."

Grady McCallie, policy director for the N.C. Conservation Network, says the Legislature's drive to rein in regulation and make it more difficult to set environmental rules goes beyond what even major backers like the N.C. Chamber of Commerce wanted. Rather than deal with specific regulatory problems, McCallie says, "they used a shotgun approach to all of it."

And while it might sound desirable to streamline the regulatory process, in the end, McCallie says, the result will be a bloated and more cumbersome system requiring detailed analysis and alternatives, even in cases where there is agreement on what to do.

"There's a lack of understanding of how the regulatory system works," he says. "It's going to clutter up the process."

What's worse, McCallie says, is that it will handcuff regulators to respond to challenges, one of the many hidden impacts of the legislation.

For instance, McCallie said, the bill is likely to limit what the state can do to regulate the growing number of large poultry operations in eastern North Carolina. "Poultry is coming into eastern North Carolina in a big way," he says. "It's not a question of stopping the poultry industry, but having regulations so that when it does come into an area, it does so in a sustainable way that adds more to the community than it takes away."

Sam Pearsall, senior scientist with the Environmental Defense Fund, says he's also worried about the consequences of the new law's "bizarre, byzantine process" for creating regulations.

The result of the Legislature's regulatory reform effort, he says, is another example of how out of touch legislators are with what citizens want in environmental protections. In fact, the implications fly in the face of what citizens told the Legislature during statewide hearings on reform earlier this year.

"They said North Carolina's environment needs to be protected and to not dial back what the state already has," he says. "Now it's going to be really, really hard to get it right for the environment."

Pearsall says the controversy and questions surrounding fracking is a prime example of why the new regulatory framework is unworkable. The state's Department of Environment and Natural Resources has already been instructed to explore regulations on fracking operations via House Bill 242, but now will be forced to do so under the "reformed" system for developing regulations.

"Here we had this golden opportunity to get good regulations in place before fracking even comes to the state," he says.

Last week, there were signs that concerns about fracking were taking hold, one possible explanation for why S709 hasn't yet come up for an override vote. Op-eds published in several newspapers over the weekend highlighted concerns about impacts to water supplies and questioned whether the state is ready.

Writing in The Herald-Sun, Derb Carter, director of the Carolinas office of the Southern Environmental Law Center, noted the unknowns about chemicals used in fracking and said gas formations are "underneath or upstream from public water supplies for 2.4 million North Carolinians."

In The News & Observer, Duke researchers Rob Jackson and Stephen Osborn cautioned that the state is as ill-prepared for fracking as it was for the explosion of the hog industry in the 1990s and its consequences.

In Chatham County, which, along with Lee County, has been targeted for fracking by the oil and gas industry, a fracking "bewareness" event drew hundreds to the Fearrington Barn, and a seminar on what to watch out for when it comes to leasing rights to drilling companies (short answer: plenty) drew about 75 landowners to the Agriculture Extension office in Pittsboro.

Chatham was heavily represented at the Legislature on Monday when about 50 residents showed up to stand in the heat and rally against the override of both S781 and S709.

They left disappointed by the override of the former and somewhat hopeful, but very, very wary, about the fate of the latter.

Keep up with the fate of S709 on Triangulator.

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