Jessica Marlies: DENR missing boat on CPP benefits

DENR Secretary Donald van der Vaart’s Aug. 15 Point of View “Cooper’s puzzling EPA stance” represented a spin on a major environmental initiative, an initiative that could provide North Carolina an economic boost.

The secretary is asking North Carolina to reject a Clean Power Plan that could turn North Carolina’s alternative energy successes into a gold mine. North Carolina has become a powerhouse among states in providing alternative clean power and power technology. A driving force behind North Carolina’s rise has been our own renewable energy portfolio standard (now also on the chopping block at the legislature in House Bill 760).

A nationwide plan facilitating a renewables market could turn North Carolina’s clean power industry into a growing source for jobs and prosperity. The secretary disregarded the CPP’s economic benefits and focused on one negative economic factor as estimated by one outside consultant.

He ignored the far more thorough cost-benefit analysis done by the Office of Air Quality Standards and Planning (with contributions from a renowned North Carolina company, RTI). That analysis showed that the benefits of the Clean Power Plan will outweigh the costs by billions of dollars. This blind spot for the real cost-benefit analysis is especially odd, given that North Carolina’s recent regulatory reform legislation requires the secretary’s agency to perform similar thorough cost-benefit analyses for its rules.

The secretary gave Gov. Pat McCrory credit for North Carolina’s current clean-air successes. He neglected to mention that those successes are built of past administrations’ leadership, such as North Carolina’s clean smokestacks laws. This despite the fact that the legislature is currently considering changes that would dismantle the last parts of those prior successful laws.

In addition, recent legislative changes termed “regulatory reform” have gutted the state’s ability to make rules that would allow us to provide in-state leadership, as he proposed. This roadblock on agency action virtually assures that remote decisionmakers in Washington will have more to say about North Carolina than North Carolinians. Happily, this problem is fixable. A legislature willing to take the lead on more state authority could re-empower executive agencies to develop and implement needed rules.

But the secretary’s most basic, and most concerning, mistake is that he failed to listen to his lawyer. State Attorney General Roy Cooper has warned lawmakers about the potential pitfalls of protracted litigation. This letter did not characterize the current plan as perfect, but instead provided the kind of advice good lawyers give. He asked the state to consider the end game – on the one hand, be mired in uncertainty and litigation, with an expensive game of catchup at the end or, on the other hand, move forward as leaders to implement a plan that provides far more public benefits than costs.

I was delighted to see the secretary embrace the NRDC and Earthjustice as important sources for environmental information. These nonprofit organizations could be a valuable free resource for North Carolina – a true public-private partnership I can endorse.

The writer is a private attorney. She is former Assistant General Counsel for NCDENR and past-chair of the N.C. Bar Association’s Environmental Section. The length limit was waived.

This story was originally published August 29, 2015 at 2:00 PM with the headline "Jessica Marlies: DENR missing boat on CPP benefits."