The site of the proposed asphalt plant at the Burlington North site (Google maps)
A Caswell County judge has dismissed a lawsuit filed by Carolina Sunrock against opponents of a proposed mine and two asphalt plants, ruling that the defendants are engaging in constitutionally protected speech.
Last year Carolina Sunrock sued 58 residents who were petitioning Caswell County officials to stop the projects. The Thomas Holt Branch of the NC NAACP, Anita Foust and the Rev. Byron Shoffner are fighting a proposed asphalt plant, known as Burlington North, on the Alamance-Caswell County line; landowners near Prospect Hill are contesting a second asphalt plant and mine in the southern part of the county.
The judge’s ruling affects NAACP members, as well as Foust and Shoffner, who had asked the court to dismiss the suit.
Carolina Sunrock, based in Raleigh, plans to build an asphalt plant along Highway 62, in Anderson Township, a predominantly Black neighborhood. The NC Department of Environmental Quality initially denied the company’s air permit application, but approved revisions last fall. NAACP members are especially concerned about the health effects of harmful air emissions — particulate matter, as well as toxic air pollutants — on the neighborhood.
Carolina Sunrock has claimed that opponents’ persistent legal appeals were depriving the company of its “vested rights” to build these projects despite a county-wide moratorium that had been placed on polluting industries. A vested right allows a company to continue a use or complete a project as it was approved, despite subsequent changes to the ordinance.
However, Shoffner, Foust and the NAACP have not challenged the company’s vested rights; rather, they simply asked the county to reconsider the issuance of two local watershed permits.
Opponents have argued that the company’s litigation was a SLAPP suit — Strategic Lawsuit Against Public Participation — intended to quiet them and bypass the citizen appeal process. Most recently, opponents have petitioned the county watershed review board, which also must approve the projects. Opponents did not raise the issue of vested rights in their appeals.
Superior Court Judge Edwin Wilson did not use the words “SLAPP suit” in his ruling. However, he noted that if the court prohibited Foust, Shoffner and the NAACP from appealing to the county watershed board, it “will only serve to dissuade petition activity, which is constitutionally protected.”
“This lawsuit asks the court to prevent the NAACP from making legal arguments during a hearing which has not yet occurred, and may not occur at all,” Judge Wilson wrote.
Judge Wilson also wrote that Carolina Sunrock legal arguments were misdirected. County officials, not the concerned residents, would be the defendants in a vested rights case.
The Southern Coalition for Social Justice represented the defendants. “Caswell County residents stood firm for their First Amendment rights and pushed back against corporate strong-arm tactics to stifle their speech,” said Mitchell Brown, counsel for voting rights at the Southern Coalition for Social Justice.
This order does not affect the defendants who chose to have the Superior Court determine the vested rights question. All defendants, including Foust, Shoffner and the NAACP, are still involved with the Watershed Review Board appeals hearing, which has been postponed until after the Superior Court case concludes.
This map shows the location of the proposed Carolina Sunrock mine in Prospect Hill. (Google maps)
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