A piece of North Carolina legislation could have lasting effects on who is allowed to take the state to court in environmental cases.

House Bill 374 is called the “Business Freedom Act,” but somewhere between the second and third editions of the bill that would change some of the state’s labor laws, a piece of environmental legislation was added. The statute, if passed, would limit who would be allowed to challenge a North Carolina Department of Environmental Quality-issued permit in the courts and what information would be allowed to be heard during a hearing.

“This bill makes some pretty substantial changes,” said Heather Jacobs Deck, deputy director of Sound Rivers and Pamlico-Tar riverkeeper. “It’s similar to the Blounts Creek judicial rulings, but this would legislate the issue.”

Deck referred to the grassroots effort of stakeholders in Blounts Creek’s support of Sound Rivers’ challenge of DEQ-issued permit that would allow a mining company to discharge up to 12 million gallons of water per day into the brackish headwaters of Blounts Creek. The case has wound its way through the court system for the past four years — twice a judge with the Office of Administrative Hearings has ruled that Sound Rivers and business owners who rely on the existing Blounts Creek habitat do not have standing to challenge the permit in court. Currently, Sound Rivers, North Carolina Coastal Federation and attorneys with Southern Environmental Law Center are appealing the latest ruling.

Deck said had this legislation been in effect when the permit was first issued, Sound Rivers might not have even been granted a hearing, as one of the requirements of the legislation is that any person challenging a permit must have spoken or submitted comments during the public comment period assigned by DEQ. A person challenging a permit would also only be able to use any information initially submitted with his comment — no additional facts or findings about the issue accepted.

“Had we not known (about the public comment period), and this bill was in place, and we hadn’t commented and members of the public hadn’t commented, we wouldn’t have been able to challenge the permit,” Deck said. “You can only use the comments. You may only have a couple of weeks to get information together, and after that, you can uncover a whole bunch of stuff, but you can’t use it. That is completely ludicrous.”

Deck said the legislation also may be in violation of the federal Clean Water Act, which has clear language allowing people access to the courts and the right to challenge a permit.

She said regulatory agencies sometimes get things wrong because information comes to light after a permit is issued. The ability to use the courts to present facts attesting to an error is instrumental in reversing the action.

“You think about the number of decisions that agencies make, where folks might found out after the fact that (it) may affect your person or property. The way they are doing this is shutting you out of the court system. … Agencies can get things wrong and that’s the intention of the Clean Water Act — (this is) trying to close the door on that at least partially,” Deck said. “It is shutting out access to the courts, to those that might be impacted and provides more power to those who are seeking the permits.”

N.C. House Rep. Beverly Boswell, who represents Beaufort, Dare, Hyde and Washington counties, is one of the sponsors of the bill. HB 374 was initially passed unanimously in the House before it went to the state Senate. It was in the Senate that the amendment for stricter requirements as to who and with what information North Carolina residents could challenge a permit was added by Republican Sen. Andy Wells, who represents Alexander and Catawba counties in the western part of the state. Sen. Bill Cook, who serves Beaufort, Camden, Currituck, Dare, Gates, Hyde, Pasquotank and Perquimans counties, voted in favor of the amendment. The bill is now back in the House, and after being withdrawn from a Thursday vote, has been referred to the Committee on Rules, Calendar and Operations.

Deck said ultimately, if passed, the legislation would limit people’s rights to protect their property.

“It just seems to be a very poor way to direct policy and legislation in this state,” she said. “For those who are paying attention, it’s another way they are undermining people’s trust in the governance of this state.”