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North Carolina's Chemours settlement
Earlier this month, North Carolina Attorney General Jeff Jackson announced a historic settlement for nearly $600 million with Chemours and DuPont. The largest environmental damages deal in the state’s history, the settlement does more — by an order of magnitude — than the EPA’s deal with Chemours earlier this year, derided by environmentalists as weak and deemed “insulting” by Jackson, who wasn’t included in negotiations.
After the announcement, environmental advocates and residents shared mixed feelings WHQR, noting that the settlement does provide relief to local governments and their constituents, but also saying that the deal, paid out over 10 to 15 years, feels inadequate given the financial resources of Chemours and DuPont, which knowingly polluted the river for decades. A darkly ironic part of the whole PFAS story is that Chemours, which was created by DuPont as a literal and figurative dumping ground for its toxic assets, has been surprisingly successful. (Although, as Jackson noted, there’s a very real chance that current and future legal liabilities will bankrupt Chemours — which is why DuPont was put on the hook for $135 million to backstop its spinoffs' legally mandated mitigation efforts if it goes under.)
New Hanover County will receive just shy of $23 million (minus litigation costs), which officials have said would first go to those using private wells, which haven’t benefitted from the major filtration overhauls that CFPUA has spent tens of millions of dollars on (notably, CFPUA has its own lawsuit to recoup those costs, which is still very much active).
Officials noted that, alongside the 2019 consent order, Chemours has now put close to $2 billion into clean-up and prevention.
Chemours, I’ll note, often incongruously touts those mitigation efforts, as if they were not responsible for the pollution they’re now cleaning up. The company likewise said it was “proud” of the settlement — an odd word choice for a company that has done hundreds of millions of dollars of damage, and possibly much more.
Jackson held a press conference here in Wilmington, a moment of bipartisan kumbaya. But it left a lingering question: the settlement paid out damages to local governments which have spent tens of millions to mitigate the environmental damage Chemours and DuPont have done. But what about the individuals with health conditions they attribute to PFAS?
Since the revelations about GenX in the Cape Fear River nearly a decade ago, there’s been a lot of discussion about a cluster of thyroid cancer in the southeastern part of the state. Additionally, many advocates have shared their own personal stories of cancer and endocrine-related illnesses they believe were caused by PFAS.
A common touchpoint is the massive DuPont settlements over PFOA (a PFAS chemical known as C8), including the legal victory scored by attorney Robert Bilott on behalf of thousands of people in the Ohio River Valley. There is currently a similar class-action suit filed against DuPont and Chemours on behalf of over 180,000 in the Cape Fear River Basin, represented by the Cohen Milstein firm. A trial date of March 4, 2027, was recently set.
The case could be difficult to try, given how broadly people are exposed to PFAS from food packaging and cooking tools (i.e., nonstick pans) and a wide range of consumer goods (especially stain- and water-resistant products). And, while there was significant evidence of C8’s threat to humans, other PFAS chemicals may require years of additional study before it can be determined if they’re carcinogenic.
Plaintiffs’ counsel remain confident they can win compensation for the cost of water and air filtration, property damage and property value reduction, and personal physical injury.
But for many advocates I talk to, even a victory feels like a failure — because you can compensate someone for their illness, but you can’t give them back healthy years. You can hold Chemours and similar companies accountable, and even punish them with damages, they say, but none of that would be necessary if the pollution never happened in the first place.
Right now, in the United States, chemical and industrial processes are often considered safe until proven hazardous from a regulatory point of view. There are other places, namely Europe, that embrace the ‘precautionary principle,’ where the burden of proof is more often on corporate polluters, not regulatory agencies (or individuals in a tort case).
Here, we’ve taken a more laissez-faire approach. It’s a deal to accept more risk in return for more economic reward (more innovation, growth, jobs, etc.). And it extends far beyond the chemical manufacturing sector — it’s also been the posture toward tech, social media, and now artificial intelligence, where the leading companies have not always been good actors, to put it mildly.
That conversation is deeper than GenX and Chemours — and it’s something a lot of deep-pocketed companies and lobbies would prefer politicians not have.
Flock cameras
A few weeks ago, New Hanover County commissioners unanimously voted to end its contract with Flock Safety — sort of.
The vote did end the New Hanover County Sheriff’s Office use of automatic license plate readers (ALPRs), which had angered residents from a broad range of political backgrounds. Commissioners — three of whom are running for office — clearly heard the overwhelmingly negative feedback and responded accordingly.
Despite the public pushback over the cameras, it wasn’t necessarily an easy vote.
Sheriff Ed McMahon had repeatedly defended the ALPR program, including anecdotal “success stories” on the ‘transparency portal’ NHCSO posted online in response to criticism. McMahon had started the Flock program with federal funds that the county had no say over, and when he needed county money to continue it, commissioners were apparently not briefed on what it actually was. (I’ve written before about the comparative lack of scrutiny that NHCSO’s budget gets, compared to, say, the school budget; some would argue there are good reasons for that, but this is, I think, a salient counterargument.)
I don’t think commissioners were particularly eager to overrule an independent elected official, or challenge the utility of a law enforcement tool – and they repeatedly mentioned their unwavering support for the Sheriff’s Office. But McMahon left them little choice, since it seemed clear he was not going to scrap the ALPRs no matter how unpopular they were. So, commissioners made a tough decision and sided with their constituents.
That said, the vote was somewhat symbolic, in part because NHCSO is still using Flock’s surveillance cameras (not the ALPRs, but real-time security cameras), and in part because Flock’s network of cameras, which includes those operated by NCDOT and other state agencies, as well as privately-owned devices, continues to blanket the region in constant surveillance.
The latter is beyond commissioners' control, and for those who oppose all ALPR surveillance by Flock and other companies, like Axon and Motorola, it will likely take legislation or a legal victory. In August, Florida banned ALPRs from state highways (although it is not, as some have suggested, a total ban), and at least 16 states, including North Carolina, have some laws on the books putting guidelines on Flock and other cameras — although some critics maintain those laws don’t go far enough.
The 4th Circuit Court of Appeals is preparing to hear a case involving Flock cameras, which gets to the core 4th Amendment issues presented by ALPRs. (The UNC School of Government’s Jeff Welty recently wrote a helpful piece in the Criminal Law Blog on the legal precedents and issues at stake.)
One solution that’s been suggested is to require a warrant, which has been the outcome for other emerging technology used by law enforcement agencies to gather cellphone information, for example. That would at least create another layer of deterrence and accountability for officers who would abuse ALPRs, and it would generate a paper trail if the system was being systematically abused to profile and harass people based on their identities or beliefs.
Related: Electric Eyes
Then there’s the issue of existing Flock surveillance cameras that are still being used by NHCSO — which are just one part of a much larger surveillance apparatus. Taken as a whole, things like Wilmington’s STING center, Shotspotter, ALPRs on police vehicles, and Ring camerasmake up a sophisticated network that presents some of the same tension between privacy and security that Flock does, but on a broader scale. And that is to say nothing of surveillance conducted by the nation’s 18 intelligence organizations and numerous other federal law enforcement agencies — or the increasingly invasive corporate surveillance that is, right now, being used to prey on young and vulnerable consumers, and to push the limits of price gouging
Long story short: Many of the protestors seemed to have learned just recently about Flock and what the company’s technology was capable of doing. There’s no shame in that, and I applaud the willingness of people to put aside partisanship to focus on a common concern. But as a friend of mine who works for the federal government once told me, “If you’re worried about Flock, you might want to sit down before you learn what else is going on.”
Cape Fear Memorial Bridge replacement
This past week, Leland became the latest local government to challenge existing plans for a replacement Cape Fear Memorial Bridge. The town follows New Hanover County and the City of Wilmington in questioning the design requirements, specifically the height — a major driver of the estimated cost, which would likely require a toll to fund.
Essentially, local officials have taken issue with federal regulations requiring that any new bridge be 135 feet tall, either with a lift section or a fixed span. That height was set by the U.S. Army Corps of Engineers last year, based on a study in the mid 1990s (the Army Corps would actually prefer an even taller bridge, but since the existing CFMB is 135 feet tall with its lift section raised, they agreed on that height). Locals have argued that the absence of consistent large vessel traffic north of the CFMB — in an area that isn’t dredged for larger ships — means the feds should consider a lower clearance requirement.
Related: A Bridge to Sell You (Sunday Edition)
A shorter bridge is likely to be considerably less expensive than the $1-billion-plus price estimates for the two options currently being considered by NCDOT. The hope is that a shorter bridge — say between 65 and 100 feet — could be funded by existing state and federal funding, including a $242-million federal grant, without a toll.
The height requirement is not immutable, and there are other bridge projects around the country where the Corps or the U.S. Coast Guard, which also helps set navigation channel requirements, have reassessed and changed their guidelines.
The conventional wisdom has been that changing the height requirement would take an ‘act of Congress ’ — however, actual legislation might not be necessary, though it might take a request from a Congressman or Senator, specifically, Senators Ted Budd and Thom Tillis and Congressman David Rouzer. That’s what New Hanover County commissioners unanimously asked for earlier this month, when they wrote to congressional reps. They also asked to extend the deadline for the federal grant, which gives the Wilmington Urban Area Metropolitan Planning Organization (WMPO), the regional planning authority, until the end of September 2027 to obligate funds for a preferred alternative. And, if the height requirement can’t be changed, they asked the feds to foot more of the bill — since it’s their interests being supported by the higher, and thus costlier, bridge.
The City of Wilmington, like county commissioners, has also asked for the ‘lesser of two evils’ — what NCDOT calls Alternative A. That’s a movable-span bridge similar to the current CFMB, with a smaller footprint that would destroy fewer properties, reduce environmental impact, and avoid the roadway disruption of Alternative B, a longer, taller, fixed-span bridge, which would empty traffic onto South Fifth Avenue, which is not designed to handle that volume of vehicles.
In short, residents and officials alike oppose tolls, and if forced to choose, want a smaller, less damaging bridge plan — with the exception of the Wilmington Chamber of Commerce, whose CEO and President Natalie English argues Alternative B would be less disruptive to traffic (including emergency vehicles) because it doesn’t need to lift for vessels. English also argued that Wilmington’s objections could threaten the existing funding.
But it seems many others are holding out hope that there’s another option out there — including Wilmington, which is exploring options beyond Alternatives A and B. The hope is to have that ready to present before the public comment period runs out next month (you can submit comment online until October 15, here).
So, will all this public pushback prompt some meaningful action, spur our Congressional reps to ask the Army Corps (and possibly the Coast Guard) to reconsider the navigation channel, and ultimately give NCDOT a new plan to pursue? We should know reasonably soon; NCDOT plans to pick a ‘preferred option’ by the end of the year.
Notably, some folks have suggested other options, including resurrecting the Cape Fear Skyway (later rebranded as the Cape Fear Crossing). The bridge was planned as a tolled alternative to the CFMB in the 1990s, and Wilmington completed significant upgrades to Independence Boulevard and acquired easements in anticipation of the project. However, despite over two decades of planning, at a cost of at least $10 million, real funding never materialized. The project was mothballed in 2019 and, in the intervening years, rapid suburban development in Brunswick County has likely made it more difficult to find a path for the bridge.
It’s still listed as a project in WMPO’s 25-year plan, although the estimated price, just shy of a billion dollars, would likely increase once more details were hammered out (the CFMB project, for example, more than doubled in cost between 2021 and 2025). Given NCDOT’s funding woes, that seems unlikely in the near future — although, to be fair, WMPO lists the project as being in the “2050+” funding cycle. Maybe things will look rosier in a quarter century, but that seems unlikely unless something dramatically changes with the state’s ability to fund transportation projects.
