Environmental advocates are appealing a lower court ruling they say prevents North Carolina residents from challenging air quality permits issued by the Department of Environment and Natural Resources.
The March 25 Superior Court ruling “has no basis in existing law,” said Geoff Gisler, a lawyer with the Southern Environmental Law Center. The center represents the N.C. Coastal Federation, Cape Fear River Watch, the N.C. Sierra Club and Pender Watch and Conservancy.
The appeal challenges a controversial air permit for Titan Cement, which wants to build a plant along the Northeast Cape Fear River at Castle Hayne. Environmental groups have opposed the plant, saying it will pollute the air, water and soil. The N.C. Court of Appeals will hear the case.
Titan has won repeated challenges, the most recent last month. Superior Court Judge Bryan Collins ruled the groups did not provide sufficient evidence of harm from the proposed plant and because of that, they had no legal standing to sue. His ruling upheld previous administrative decisions in favor of Titan.
Gisler said the recent ruling requires litigants to prove an impossible standard: actual harm to specific individuals from a plant that hasn’t been built. The ruling conflicts with prior court rulings in North Carolina and with the federal Clean Air Act, which gives residents the right to sue, he said.
“It’s a new standard that has never been applied in a court in North Carolina,” Gisler said. “It essentially shuts people out of the courtroom.” He filed a notice of appeal Monday. He expects the appellate court to hear the case in summer or fall.
Collins said in his ruling the plaintiffs have had plenty of opportunity to prove harm and previous decisions awarding the air permit to Titan were “appropriately granted.”
If Collins’ ruling is upheld, residents won’t have recourse to contest government decisions in the courtroom, said Mike Giles, advocate with the Coastal Federation’s Southeast Regional Office in Wrightsville Beach.
“It affects the right of everyday people to hold their government accountable,” he said.
Bob Odom, general manager of Carolinas Cement Co. in Wilmington, defended Collins’ ruling in a written statement saying the air permit was issued after “exhaustive” review.
“We take issue with the activists’ claims that this ruling prohibits North Carolina citizens from challenging our air permit, since they have challenged the air permit in the courts no less than four times in the past three years,” he said in the statement sent by the public relations firm representing Titan. “How often do the courts need to rule on this issue?”
Odom said the plant will have “the most advanced combination of pollution controls of any cement plant in the world.”
Jamie Kritzer, spokesman for DENR, said officials with the agency were pleased by the judge’s ruling, but he would not comment on the pending appeal because the case is still in litigation.