Earlier this month, the Supreme Court of North Carolina held again that the judicial branch should not issue advisory opinions regarding disputes that have already been addressed through the political process. The decision in Cape Fear River Watch v. N.C. Environmental Management Commission provides a reminder that the Supreme Court is understandably reluctant to wade into areas where the General Assembly has, during the pendency of a lawsuit, addressed the subject matter of the dispute through legislation. As it did two terms ago in the Hoke County v. State (Leandro pre-kindergarten) appeal, the Court declined to issue an advisory opinion on issues that had become moot in light of the statutory revisions.
The issue in Cape Fear River Watch concerns the time frame for Duke Energy’s efforts to clean up the groundwater contamination caused by its coal ash pits at fourteen sites in North Carolina, an issue which later attracted greater interest following Duke Energy’s spill of coal ash into the Dan River in early 2014. In October 2012, prior to the Dan River spill, the petitioners filed a request that the North Carolina Environmental Management Commission (the “Commission”) issue a declaratory ruling regarding the application of state groundwater contamination rules to coal ash lagoons. In December 2012, the Commission issued a decision that interpreted the relevant regulations in a manner that did not require immediate action by Duke Energy.
Unhappy with the Commission’s decision, the petitioners filed a petition for judicial review of the ruling in Wake County Superior Court to challenge the Commission’s construction of the regulations. Three days before the Superior Court hearing, however, the General Assembly enacted a Chapter 413 of the North Carolina Session Laws, which Duke Energy contended then rendered moot petitioner’s entire request for relief.
The trial court agreed, in part, finding part of petitioner’s challenge to have been mooted by Chapter 413, but also finding that portions of the Commission’s declaratory ruling were “plainly erroneous,” effectively requiring Duke Energy to take immediate action to eliminate the sources of the groundwater contamination from its coal ash pits.
The Commission and Duke Energy appealed a portion of the order to the N.C. Court of Appeals. While the appeal was pending, the legislature acted again, passing “Chapter 122” of the Session Laws. Meanwhile, on October 10, 2014, the N.C. Supreme Court certified the case for review prior to determination in the Court of Appeals pursuant to N.C. Gen. Stat. § 7A-31(a) and (b)(2) and North Carolina Rule of Appellate Procedure 15(e)(2). This case was one of the five that the Supreme Court assumed that same day in an unprecedented exercise of its “PDR prior” or “bypass PDR” authority, as we discussed here earlier.
In the Supreme Court, Appellees argued that Chapter 122 had mooted the balance of petitioner’s challenge, and that the trial court’s order should therefore be vacated. In a unanimous opinion, the Supreme Court agreed, vacating the trial court’s March 6, 2014 order, finding it moot by virtue of the General Assembly’s actions during the pendency of the lawsuit. . The Court noted that N.C. Gen. Stat. § 143-215.1, as rewritten by the General Assembly effective September 20, 2014, addresses the schedule for corrective action to restore groundwater quality. The Court dismissed the petitioners’ arguments regarding the application of the statute to closed or inactive coal ash lagoons. The Court noted that according to the uncontroverted evidence in the record, all facilities where coal ash lagoons were located held active permits. It declined to issue an advisory opinion regarding closed or inactive coal ash lagoons when no evidence demonstrated they existed. The Court reasoned:
While the appropriate response to the environmental issues associated with the operation of coal ash lagoons is clearly a matter of significant public interest, this Court’s role in the resolution of such questions is limited to determining the content of existing law and ensuring that existing law is appropriately applied to the relevant facts. At this point, the record does not contain any indication that any decision that we might make with respect to the correctness of the trial court’s resolution of the second request for a declaratory ruling set out in petitioners’ petition would have any practical impact. In addition, it is clear that the General Assembly has taken an active role in the proper resolution of the issues that petitioners sought to have addressed in the petition for a declaratory ruling. By adopting Chapter 122, the General Assembly sought to address the public’s understandable concern about the effect of the operation of coal ash lagoons on the ground and surface waters in North Carolina. In light of these considerations, we believe that we should refrain from issuing what amounts to an advisory opinion concerning any impact of the applicable regulation on any non-permitted coal ash lagoons that may, contrary to the record evidence, actually exist.
The decision echoes that made in Hoke County v. State (Leandro), when the Court vacated the trial court’s order finding a pre-kindergarten statute unconstitutional because the legislature had amended the statute just before oral arguments were held in the Court of Appeals. The lesson for practitioners from this line of cases seems clear: the state courts may be unlikely to provide redress where the legislature has already sought to fix the issue in dispute.