Senator Doug Berger Message

During the last session, the General Assembly has tackled some difficult issues. Among those were four environmental bills, two of which were vetoed by Gov. Beverly Perdue. I will outline my position on each issue and the current status of the bill.

At the end, I will give an update on Caylee’s Law.

Fracking Bill Under Scrutiny

Senate Bill 709 was recently vetoed by Gov. Perdue for several reasons. The most salient reason is that she found it unconstitutional because it contained a directive to her to join a compact with South Carolina and Virginia for offshore drilling. The General Assembly overstepped its bounds and violated the separation of powers principal of the N.C. Constitution, she said in her veto message.

Also in the Governor’s veto message were two executive orders. One re-established and expanded the scope of the Scientific Advisory Panel on Energy and the second created the Offshore Wind Economic Development Task Force. The intent of both is to pursue development of energy sources in our state.

My main objections to the bill are that it takes steps in the direction to allow offshore drilling for oil and onshore drilling using hydraulic fracturing, or fracking, of underground shale in search of natural gas deposits. There is compelling evidence that this procedure could threaten our drinking water where it is carried out, putting homeowners and possibly whole communities at risk.   During the week of the debate on this issue, Duke University released a study  connecting water contamination to fracking natural gas wells. New Jersey may become the first state in the nation to ban this method of drilling.  Two weeks ago the New Jersey Legislature sent Republican Gov. Chris Christie a measure to ban hydraulic fracturing.

In North Carolina, eight House Democrats voted in favor of the legislation, and the Senate approved the measure by a 35-10 vote. The veto override vote will likely take place Wednesday July 13, 2011.  I was one of the 10 Democrats who voted no and I plan to vote to sustain the Governor’s veto.

Water Needs Protection

House Bill 119 is an environmental bill I could not vote for multiple reasons, including a delay in the cleanup of Jordan Lake which provides drinking water to millions of North Carolinians and serves as a place of recreation.

For several years, water samples from the lake and river have shown high levels of chlorophyll, indicating unhealthy levels of algae in the water. High levels of nitrogen and phosphorus pollution feed the algae.

In recent years, water samples have also shown high levels of alkalinity, another reflection of algae growth fed by pollution from upstream. At times, the alkalinity has reached a pH of greater than 9, comparable to a weak solution of bleach – enough to chemically burn sensitive skin. Researchers believe that over time, continued high levels of pollution will lead to fish kills and the collapse of Jordan Lake’s ecosystem.  On the third reading of this bill, the Senate voted 26-20 in favor of its passage.  The bill became law without the Governor’s signature.

Permit Terminal Groins?

Semate Bill 110 allows for the construction of large cement barricades, called terminal groins, that are supposed to prevent beach inlets from eroding.   I believe the groins could have a long term negative impact on North Carolina’s coast. Research has indicated that dredging and beach nourishment often must continue after the groin is built. The dredging and nourishment, as well as the existence of the groin itself, can have a detrimental effect on sea turtle and shore bird nesting sites. It’s an expensive process that can drain a community of funds while offering questionable protection to the coastline. On the vote to adopt the conference report, the Senate votes 38-9 in favor of its passage.  I voted against this bill, however, it has become law without the Governor’s signature.

Regulatory Reform

Senate Bill 781, also known as the Regulatory Reform Act of 2011, was also vetoed by the Governor. I may not be able to support her in this action. This bill passed 50-0 when it first passed out of the Senate and then it passed 43-0 on the conference report.  I am fully aware that this bill has been strongly opposed by a coalition of environmental groups.  However, the Governor vetoed the bill on narrow grounds arguing the bill was unconstitutional because it provides final decision-making authority to administrative law judges.  It is the Governor’s position that this restructuring of the decision-making process violates the separation of powers between the executive branch and the judiciary.  

I do not believe the Governor has received sound legal advice on this issue.  These judges hear a wide range of disputes that include but are not limited to disputes between small businesses and environmental regulators, disabled children and the Division of Medicaid, and agency managers and employees.  These disputes must be resolved through a hearing before these judges before either side can appeal and have the matter reviewed in the General Courts of Justice.  Currently an agency can either adopt the judge’s decision or reject it and make its own final decision on the case before it is reviewed in the General Courts of Justice. 

A review of the aggregate cases heard by these judges shows that they usually rule in favor of the agency, and the agency will almost always adopt the finding of the judge when the agency wins.  However when the agency loses in front of the judge, the agencies almost always reject the judge’s decisions.  The current structure makes it very costly for anyone to challenge a decision by the bureaucracy.  

While I do not agree with parts of this bill that make it more difficult for agencies to pass environmental regulations, I believe this structural reform increases the rights of citizens to have a fair opportunity to challenge abuses of power by the Executive Branch. Such a reform is important enough that I will likely vote to override the Governor’s veto.   The veto override vote will likely take place Wednesday, July 13.

Click here to read more about the bill from WRAL.

Caylee’s Law

 Many of you have sent emails concerning the jury trial in Florida last week that acquitted Casey Anthony of murdering her two-year-old daughter Caylee. The judge in the trial sentenced Anthony of lying to police officers about Caylee’s disappearance, which resulted in four misdemeanor convictions against her.  She is expected to be released from jail in mere days.

In light of this tragic case, the call has come forth from many to make failure to report a missing child in a timely manner a felony. Anthony waited 31 days to report Caylee missing.

The issue is definitely on the General Assembly radar. Legislators are researching North Carolina’s current laws on missing children and negligent parents to see if they need to be strengthened or if new laws need to be put on the books. I will keep you informed of progress made on this issue.


As always I welcome your comments on this newsletter or anything else that concerns you.  My office is here to help in whatever manner we can.  It is an honor to serve as your Senator, and I will do everything in my power to live up to that honor.


Doug Berger