NC environmental agency seeks records from UNC professors

The N.C. Department of Environmental Quality is asking UNC-Chapel Hill to turn over extensive records after some UNC professors sided against the agency in a lawsuit by environmentalists.

An attorney for the professors says the records request is unusual and may be meant to intimidate. The attorney for environmental groups that filed the lawsuit, which challenged an air quality permit, calls it a “witch hunt.”

The environmental agency disputes all of that, and says the records will help regulators improve their work by understanding the professors’ thinking.

“We are always interested in opportunities to improve our programs, and learning what the academic community thinks could help us do that,” DEQ spokeswoman Stephanie Hawco said in an email.

The conflict began over an air quality permit for a long-planned and controversial cement plant expansion in Castle Hayne in New Hanover County. Four environmental organizations were denied a hearing to challenge the permit, which DEQ issued. The four then appealed to a state court.

DEQ and the company, Titan America, argued that the environmentalists were not entitled to a hearing.

That’s when the group of professors in environmental and administrative law – three from UNC-CH, three from Wake Forest University and one from Duke University – filed a “friend of the court” brief. They argued that not allowing people to challenge in court how well DEQ enforces pollution laws “upends more than 20 years of state administrative law.”

The U.S. Environmental Protection Agency last year sent DEQ a letter cautioning that the state agency’s position in recent cases – that citizen groups didn’t have the legal standing to challenge air and water quality permits – puts North Carolina at risk for the federal government to take over regulation. The letter mentioned the Titan plant.

While the case was on appeal, last month Titan abandoned its expansion plans, which would have added a cement kiln and quarry that, according to the professors’ brief, would emit more than 5,000 tons of air pollution every year at the Northeast Cape Fear River. On the day Titan announced the cancellation, UNC received the broad public records request from DEQ.

In the request that UNC estimates will take more than 50 hours to fulfill, DEQ seeks correspondence, emails, memos, voice mails, phone logs, phone bills, call history logs, drafts of the brief and notes.

Michelle Benedict Nowlin of the Duke Environmental Law and Policy Clinic, who filed the brief on behalf of the professors, said Tuesday it was highly unusual for a state agency to make a formal records request to a university. She said it is more typical that a private industry would seek records related to academic research, and that, in her experience, was often done to intimidate.

“This comes on the heels of other efforts to very closely scrutinize the activities of academic centers within the UNC system, which seems to me to be a dangerous precedent perhaps,” she said. “It suggests infringement of academic freedom, the First Amendment rights of association and expression.”

Hawco, the DEQ spokeswoman, said that since the professors aren’t party to the lawsuit, the agency’s attorneys weren’t able to obtain information about their reasoning through the discovery process in court.

Derb Carter of the Southern Environmental Law Center said DEQ could have simply asked to meet with the professors.

“DEQ should focus on its job of protecting the state’s environment rather than setting off on a witch hunt against law professors who disagree with the agency’s extreme view that North Carolina citizens have no right to challenge permits the agency issues to pollute our air and water.”

Crystal Feldman, DEQ’s communication’s director, said the agency recognizes that citizens play an important role in protecting the environment. She said the environmental law center is “merely throwing a tantrum” because two judges have ruled against it in this matter.

This story was originally published April 12, 2016 at 4:55 PM with the headline "NC environmental agency seeks records from UNC professors."