July 31, 2014

Budget proposal includes provision that
could speed up bridge replacement


The North Carolina General Assembly's final proposed budget, which was made public last night, includes a provision that would allow the governor to bypass some state environmental laws and potentially speed up the replacement of the aging Herbert C. Bonner Bridge over Oregon Inlet.

The provision, which all but names the bridge, is worded like this:

"Through issuance of an executive order to waive requirements for an environmental document or permit issued under Articles 1, 4, and 7 of Chapter 113A of the General Statutes for the repair, protection, safety enhancement, or replacement of a component of the state highway system that provides the sole road access to an incorporated municipality or an unincorporated inhabited area bordering the Atlantic Ocean or any coastal sound where bridge or road conditions as a result of the events leading to the declaration of the state of emergency pose a substantial risk to public health, safety, or welfare."

The governor's executive power would apply only to state laws that are slowing the bridge replacement and not a federal challenge to the replacement plan.

Under the provision, the governor could order that the project move ahead despite pending legal action by the Southern Environmental Law Center, on behalf of its clients, that challenges a Major CAMA Permit issued by the state for the bridge replacement.

The permit was issued in September 2012.  SELC asked for a hearing to appeal that action to an administrative law judge, which the Coastal Resources Commission denied in October 2012.  The environmental group then asked for a judicial review of the case, which was granted last year by a Wake County Superior Court judge. A hearing on that action is scheduled for November.

But for all practical purposes, the state challenge is on hold for now, while a federal lawsuit, also filed by SELC, plays out. In that case, SELC and its clients have sued the Federal Highway Administration and the North Carolina Department of Transportation to stop their plan for replacing the bridge.

Last fall, a U.S. District Court judge in New Bern ruled in favor of FWHA and DOT, allowing the project to move forward.

SELC appealed the ruling to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The appeals court conducted a hearing on the lawsuit in May, and a decision is expected at any time.

However, even if the decision is in favor of the state and federal government, the bridge replacement would still have to survive the challenge to the state-issued CAMA permit.

The provision in the budget proposal would allow the governor to eliminate that challenge based on the decrepit bridge's "risk to public health, safety, and welfare."

But there is no guarantee that the legal wrangling would stop there.

An executive order could certainly get the bridge replacement back on track, but there is nothing to prohibit SELC from challenging the new law in court.

The latest budget proposal is a $21.3 billion spending plan for the fiscal year that began on July 1.  The Senate and House have been wrangling over a compromise for most of this month.

The spending bill must pass in each chamber twice, which is expected to happen between today and Saturday.  The governor will then have 30 days to sign or veto it before it automatically becomes law.

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