Judge rules for Environmental Law and Policy Clinic client

May 4, 2010Duke Law News

The Duke Environmental Law and Policy Clinic has helped secure a court order to suspend work on a cement plant on the banks of the Northeast Cape Fear River until a full review of the anticipated impacts to the environment and public health is prepared.

Acting on behalf of PenderWatch & Conservancy, a nonprofit grassroots organization, and in concert with the Southern Environmental Law Center, which represented two other community groups, the clinic appealed a declaratory ruling issued by the North Carolina Department of Administration (DOA) that allowed the proposed Titan America cement plant to proceed without environmental review. The petitioners won in Wake County Superior Court on all counts, said Supervising Attorney Michelle Nowlin, who argued the case on behalf of PenderWatch in April.

“The judge found that state grants to Titan, the parent company for Carolinas Cement, constitute an ‘expenditure of public funds,’ thereby triggering the application of the state Environmental Policy Act,” she said. “The ruling requires the company to conduct an environmental impact study, and prohibits the state from issuing any permits pending its completion. As a result of the ruling, the state will have to rescind the draft air quality permit it issued earlier this year, and Carolinas Cement will have to study and disclose the project’s potential impacts on adjoining wetlands, protected lands, fishing interests and community health before proceeding further. This ruling upholds the statute’s principle of ‘look before you leap’ and restores the public’s voice in charting the region’s development.”

Twelve Duke Law students enrolled in the clinic worked on the case over a two-year period. “Like Michelle, the clinic students who have worked on our case over the past four semesters have been, without exception, dedicated, professional and very hard working, and this win would not have been possible without them,” said acting PenderWatch President Allie Sheffield. “It has been a true team effort.”

The proposed kiln and mine would be the fourth largest cement plant in the country and is expected to be a major source of toxic emissions such as mercury and hydrochloric acid, Nowlin added.

The state has listed the Northeast Cape Fear River as being already impaired by mercury contamination. As a “blackwater river,” it constitutes an ecosystem that a recent U.S. Geological Survey study found to be particularly vulnerable to mercury contamination. Residents, including many health care professionals, are concerned that the cement plant would worsen the contamination, harm children, and effectively end commercial and recreational fishing in the river, said Nowlin. “Significantly, as a result of the court’s ruling, the company will now have to comply with new federal regulations governing the control of mercury and other hazardous air pollutants it had evaded by pushing the permit issuance prior to a comprehensive environmental review.”

PenderWatch & Conservancy, like the North Carolina Coastal Federation and Cape Fear River Watch which joined as petitioners in the appeal, is a nonprofit organization whose members include concerned residents of the nearby Wilmington area and Cape Fear basin.

Duke’s Environmental Law and Policy Clinic is a joint venture of Duke’s Law School and its Nicholas School of the Environment. The clinic represents nonprofit organizations and low-income clients who qualify for representation under the North Carolina State Bar’s practice rules, which allow law students to provide legal services to clients in specific circumstances.

» Read The News & Observer's coverage of this case
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