Is the State Superintendent of Public Instruction required to comply with the NC Environmental Policy Act (NCEPA) when issuing certificates of approval for new school construction plans under N.C.G.S. § 115C-521, given that local school boards may not invest in any new building without a Superintendent-issued plan approval covering structural and functional soundness, safety, and sanitation?

Plain-English summary

Roger Jackson, the Deputy State Superintendent of Public Instruction, asked the AG whether the State Superintendent had to comply with the NC Environmental Policy Act (NCEPA) when issuing certificates of approval for new school construction plans. The Superintendent's approval is the gate keeper under G.S. § 115C-521(c): "local boards of education shall not invest any money in any new building that is not built in accordance with plans approved by the State Superintendent to structural and functional soundness, safety and sanitation." DPI delegates the review to the School Planning section of the Division of Facility Services, which checks plans for structural and functional soundness, safety, and sanitation, and (when approved) issues a Certificate of Approval valid for one year.

Senior Deputy AG Daniel C. Oakley and Assistant AG Robin W. Smith said yes, NCEPA applies. The Superintendent must comply with NCEPA when issuing approvals.

The NCEPA framework. N.C.G.S. § 113A-1 et seq. requires preparation of an environmental document for any activity that has the potential to affect the quality of the environment and that involves both state action and the expenditure of public moneys or the use of public lands. The document may be a full Environmental Impact Statement (EIS) or, more commonly, an Environmental Assessment (EA) leading to a Finding of No Significant Impact (FONSI). Under N.C.G.S. § 113A-11, the Department of Administration has authority to adopt implementing rules, which include the definitions at T1 NCAC 25.0108(b). The rule definitions matter:

• "Action" includes "licensing, certification, permitting, the lending of credit, expenditures of public monies, and other similar final agency decisions the absence of which would preclude the proposed activity." It excludes formula-based fund allocations that leave no discretion to the allocating agency.
• "Public monies" includes "all expenditures in support of the proposed activity by federal, state or local public or quasi-public entities from whatever source derived," with carve-outs for resources used solely for licensing/permitting processing, the lending of credit, or technical services.

NCEPA also reaches local-government projects when they are subject to state-agency review, approval, or licensing under existing statutory authority (N.C.G.S. § 113A-9). In those cases, the local entity must supply the information state agencies need to prepare any required environmental statement.

Applying the framework. The Superintendent's plan-approval certificate is a state "action" under the rule definition because, without it, the local school board cannot invest in the new building. The certificate is a "final agency decision the absence of which would preclude the proposed activity." School construction also unambiguously involves "expenditure of public monies" within the rule definition (whether state or local funds are used). The local school board is, by statute, subject to the Superintendent's review and approval, so the § 113A-9 hook for state agency oversight of local projects is satisfied. With both NCEPA prongs met, the Superintendent must comply.

DPI's review scope also includes site-selection issues with environmental implications. The Procedures for School Building Projects requires information on location, acreage, use and ownership of adjacent land; the relationship of the facility to existing buildings and infrastructure; whether the site is in a municipal watershed, floodplain, or wetlands; soil investigation reports; site plans with topography, drainage, and sedimentation control; and plumbing drawings showing water and waste connections. That review is squarely environmental, not narrowly structural.

What compliance looks like in practice. The AG flagged several pragmatic accommodations:

• DPI may adopt minimum criteria defining some categories of construction as falling below the environmental-significance threshold and exempt them from the requirement for an environmental document. That keeps the smallest projects out of the formal NCEPA pipeline.
• When a document is required, the Superintendent may shift the burden of gathering information to the local school board proposing the project. The local board has the data; the state agency uses it.
• In many cases an Environmental Assessment leading to a FONSI will be sufficient. A full Environmental Impact Statement is not needed for every project.

The opinion does not specify how DPI should structure its NCEPA compliance procedures; it confirms the legal obligation and points to the pragmatic tools available.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

NCEPA in N.C.G.S. § 113A-1 et seq. remains in force. The implementing rules in Title 1 of the NC Administrative Code have been amended over the years. G.S. § 115C-521 remains the basic authority for State Superintendent approval of new school construction. The legal obligation identified in the 1994 opinion (state agency must comply with NCEPA where its approval is a final agency decision without which a project cannot proceed and where public monies are spent) is still the basic framework. Any current question about how a specific school construction approval should be processed under NCEPA should be checked against the current DPI procedures, current Title 1 NCEPA rules, and any later NCEPA-related AG opinions or court decisions.

Common questions

Q: What kinds of environmental concerns does NCEPA review address?
A: NCEPA review can address impacts on water quality (especially in municipal watersheds), flood-plain implications, wetlands disturbance, sedimentation and erosion control, soil suitability for the proposed use, potential effects on adjacent land uses, traffic and access patterns, utility-system loading, and similar environmental impacts. The level of analysis scales with the magnitude and likely significance of the impacts; small in-town projects on already-developed sites typically require less than greenfield construction in environmentally sensitive areas.

Q: When is an Environmental Assessment enough vs. a full Environmental Impact Statement?
A: An EA is the initial environmental document analyzing whether the project will have significant environmental effects. If the EA shows no significant effects, the agency issues a Finding of No Significant Impact (FONSI) and the NCEPA process ends. If the EA identifies potentially significant effects, the agency must prepare a full Environmental Impact Statement (EIS), which is a more detailed analysis with alternatives, mitigation measures, and public comment. Most NCEPA reviews end at the EA/FONSI stage.

Q: Why can DPI exempt small projects?
A: The NCEPA implementing rules and case law recognize that not every state action with some public spending implicates the environmental-review machinery. Agencies typically adopt categorical exclusions or minimum thresholds for activities they have determined as a class will not have significant environmental impacts. A small classroom addition on an existing campus, for instance, is unlikely to require formal NCEPA documentation. DPI is free to adopt rules drawing those lines, subject to the statutory framework.

Q: Who pays for the environmental review work?
A: The AG flagged that the Superintendent may put the data-gathering burden on the local school board proposing the project. NCEPA § 113A-9 supports that allocation: when a local-government project is subject to state-agency review or approval, the local entity must supply the information needed for the state agency's environmental document. Practical experience: most NCEPA-required information at the EA stage is already part of the architectural and engineering work the local board is doing anyway (site plans, soil reports, utility designs), so the marginal NCEPA cost is usually modest at the EA stage.

Q: What happens if the Superintendent issues a Certificate of Approval without NCEPA compliance?
A: The certificate could be challenged in court. NCEPA does not include an express private right of action for citizen plaintiffs, but courts have entertained challenges under general administrative-law review and have set aside state-agency actions taken without required environmental review. A school board proceeding with construction based on a NCEPA-deficient certificate would face risk of injunction or litigation delay, plus reputational exposure if the project later draws environmental criticism.

Q: Does this opinion apply to renovations of existing schools?
A: G.S. § 115C-521(c) by its terms reaches "new building[s]," so straight renovations of existing structures are arguably outside the certificate requirement (and therefore outside the NCEPA trigger via this opinion). Significant additions or reconstructions may be treated as "new" depending on their scope. DPI's procedures and the underlying NCEPA "action" analysis would govern in close cases.

Background and statutory framework

NC's Environmental Policy Act, modeled on the federal National Environmental Policy Act (NEPA), requires state agencies to consider environmental impacts before taking final action on activities that affect the environment and use public resources. NCEPA does not, on its own, prohibit environmentally harmful activities; it requires that the decision-maker have an environmental analysis in front of it before deciding. The hope is that informed decisions will incorporate mitigation and avoidance where feasible.

G.S. § 115C-521 is part of NC's general framework for local school construction. Local boards of education own and operate public school facilities, but their authority to build is constrained by the requirement of Superintendent approval. That approval is grounded in centralized expertise on school construction standards, but as the 1994 opinion confirms, it is also a state agency action that triggers NCEPA review obligations.

The 1994 opinion is a useful application of NCEPA's text and implementing rules to a specific state-approval workflow. It walks through the rule-based definitions of "action" and "public monies" rather than reaching for case law, which makes it a good template for analyzing whether other state approval programs trigger NCEPA. The pragmatic accommodations (categorical exclusions, EA-with-FONSI for typical projects, burden-shifting to local applicants) keep the obligation workable.

Citations

• N.C.G.S. § 113A-1 et seq. (NC Environmental Policy Act)
• N.C.G.S. § 113A-4 (NCEPA requires environmental document for activity with potential to affect environment and involving state action plus public monies/lands)
• N.C.G.S. § 113A-9 (NCEPA applies to local projects subject to state agency review or approval; local entity must supply information)
• N.C.G.S. § 113A-11 (Department of Administration authority to adopt NCEPA implementing rules)
• N.C.G.S. § 115C-521 (State Superintendent approval of new school construction plans)
• N.C.G.S. § 115C-521(c) (local boards may not invest in any new building not built per Superintendent-approved plans)
• T1 NCAC 25.0108(a) (NCEPA scope: environmental document required for state action plus public monies)
• T1 NCAC 25.0108(b) (definitions of "action" and "public monies" for NCEPA)
• Procedures for School Building Projects, Department of Public Instruction (DPI review scope including site environmental factors)

Source

• Landing page: https://ncdoj.gov/opinions/application-of-the-north-carolina-environmental-policy-act-to-the-superintendents-responsibilities/

Original opinion text

November 22, 1994

Mr. Roger Jackson
Deputy State Superintendent of Public Instruction
Education Building
301 N. Wilmington Street
Raleigh, N.C. 27601-2825

RE: Advisory Opinion; Application of the North Carolina Environmental Policy Act to the Superintendent's Responsibilities Under N.C.G.S. § 115C-521

Dear Mr. Jackson:

We reply to your request of May 19, 1994 for an opinion on the question of whether the State Superintendent of Public Instruction is required to comply with the North Carolina Environmental Policy Act, N.C.G.S. § 113A-1, et seq. (NCEPA) in carrying out his responsibility under N.C.G.S. § 115C-521 to approve plans for new school construction. For the reasons set out below, it is our opinion that the Superintendent is required to comply with the NCEPA in issuing certificates of approval under N.C.G.S. § 115C-521.

Under N.C.G.S. § 115C-521(c), local boards of education shall not "invest any money in any new building that is not built in accordance with plans approved by the State Superintendent to structural and functional soundness, safety and sanitation". The Superintendent has delegated authority to review and approve plans to the School Planning section of the Division of Facility Services in DPI. As required under the statute, plans are reviewed for structural and functional soundness, safety and sanitation. If approved, DPI issues a Certificate of Approval effective for one year from the date of issuance.

The scope of the DPI review includes the following (as set out in Procedures for School Building Projects, Department of Public Instruction):

Location, acreage, use and ownership of adjacent land;

Location and size of the facility in relation to existing buildings, roads, walks, utility service, etc.;

Indication of whether the site is located in a municipal watershed area, flood plain or involves wetlands;

Soil investigation report and other reports or studies made for the project;

Site plan showing topographic information, general elements of drainage and sedimentation control, utility requirements, etc.

Plumbing drawings showing source of water supply and waste disposal termination; and general development of the plumbing system;

The information required of the local school board indicates that DPI assesses both site selection and facility design in reviewing the planned construction for "structural and functional soundness, sanitation and safety".

The North Carolina Environmental Policy Act (NCEPA) requires preparation of an environmental document for any activity having the potential to affect the quality of the environment and also involving: 1. state action; and 2. expenditure of public moneys or the use of public lands. N.C.G.S. § 113A-4; T1 NCAC 25.0108(a). The document may take the form of an Environmental Assessment (EA) leading to a Finding of No Significant Impact (FONSI) or a full Environmental Impact Statement (EIS).

The NCEPA is directed toward the actions of state agencies, but also applies "in those instances where programs, projects and actions of local governmental units or bodies are subject to review, approval or licensing by State agencies in accordance with existing statutory authority". In those cases, the local governmental unit or body must supply information required by the State agencies for preparation of any environmental statement required by the NCEPA. N.C.G.S. § 113A-9.

Under N.C.G.S. § 113A-11, the Department of Administration has authority to adopt rules implementing the NCEPA; those rules include the following definitions as set forth in T1 NCAC 25.0108(b):

(1) "Action" includes but is not limited to licensing, certification, permitting, the lending of credit, expenditures of public monies, and other similar final agency decisions the absence of which would preclude the proposed activity. Action does not include the allocation of any public funds transferred in accordance with a statutory or regulatory formula, which leave no discretion to the allocating agency.

(3) "Public monies" includes all expenditures in support of the proposed activity by federal, state or local public or quasi-public entities from whatever source derived, but does not include resources used solely for processing a license, a certificate, or a permit; the lending of credit; or the resources used for the provision of technical services.

There is no question that school construction involves an expenditure of "public monies" as defined in rules adopted by the Department of Administration to implement the NCEPA. The Superintendent's issuance of a certificate of approval for proposed school construction also appears to meet the definition of a state "action" as defined in T1 NCAC 25.0108(b) in that it is a "final agency decision the absence of which would preclude the proposed activity". The scope of DPI's review further indicates that the review process specifically includes site selection issues with environmental implications. Based on those two findings, the Superintendent would be required to comply with the requirements of the NCEPA in issuing certificates of approval.

As noted above, compliance with the NCEPA will not always require preparation of an Environmental Impact Statement. The Department of Public Instruction may adopt minimum criteria defining certain construction as falling below a threshold at which there is potential for a significant effect on the environment and exempt that construction from the requirement for an environmental document. In those cases where a document is required, the Superintendent may place the burden of gathering the necessary information on the local school board proposing the school construction. In many cases, an environmental assessment, rather than a full environmental impact statement, will probably be sufficient.

We hope this responds to your question. Please call if you have further questions about compliance with the requirements of the NCEPA.

Daniel C. Oakley
Senior Deputy Attorney General

Robin W. Smith
Assistant Attorney General