Could North Carolina’s coal ash bill prove fatal to the state’s citizen commissions?

The North Carolina General Assembly’s efforts to re-establish the state’s coal ash commission have many worried that another lawsuit from Gov. Pat McCrory could further limit oversight.

Specifically, such a case could lead to the dissolution of multiple citizen commissions whose purpose it is to oversee various governmental agencies within the state.

The Coal Ash Management Commission was originally created in the months following the 2014 Dan River spill as part of the Coal Ash Management Act (CAMA). Gov. McCrory refused to sign the bill, which became law without his signature on June 20, 2014.

The governor, a former longtime Duke Energy employee, sued the legislature over the commission, objecting to the requirement that the commission be independent of the governor. In 2015, the state’s Supreme Court agreed, declaring the commission’s appointment process “unconstitutional.” Its decision does not prohibit the General Assembly from making appointments to executive branch commissions.

The lawsuit also included the state’s Mining and Oil and Gas commissions – both of which were reconstituted as part of SB71, the bill now awaiting the governor’s signature or veto.

SB71 affords Gov. McCrory five of seven appointees to the coal ash commission, though the legislature must approve them. The governor is also able to remove commissioners under limited circumstances, but not at will.

This setup still irks Gov. McCrory, who, before the bill was made public, not only issued a veto threat but threatened to sue the legislature again. The legislature has enough votes to override a veto.

Both the Senate and the House are each responsible for appointing one commissioner to the coal ash commission.

Robin W. Smith, an attorney and former Assistant Secretary for Environment at the N.C. Department of Environment and Natural Resources (now the Department of Environmental Quality), summarized the Supreme Court’s decision on the blog SmithEnvironment.com:

The court pointed to three factors that combined to create an unconstitutional legislative  interference with the Governor’s executive powers and responsibilities:

1. Each commission has authority to take final executive action  (i.e., the Coal Ash Management Commission has the final authority to prioritize coal ash ponds for closure and approve final closure plans);

2. The legislature appointed a majority of the members to each commission; and

3. The legislature limited the Governor’s ability to remove commission members by allowing removal only for cause (such as misconduct).

The implication of the decision is that a separation of powers violation has occurred when all three conditions exist.

The coal ash commission, as recreated in SB71, meets two of those three conditions.

Attorneys for the legislature and the two former governors who were party to Gov. McCrory’s previous lawsuit disagree with his attorney, Robert C. Stephens, that the commission’s new structure would violate the Supreme Court’s ruling.

Stephens’ letter to the General Assembly reads, in part:

The three commissions in this bill are the same commissions that were at issue in McCrory v. Berger. In that case, our Supreme Court ruled that the structure of all three prevented the Governor from performing his constitutional duty to faithfully execute the laws. This was a violation of the cornerstone principle Of our state’s constitution — the separation of powers. The Court stated, “in light of the final executive authority that these three commissions possess, the Governor must have enough control over them to perform his constitutional duty.” In reaching this conclusion, the Supreme Court reaffirmed the vitality of its unanimous decision in Wallace v. Bone, which- held that the General Assembly may not “retain some control” over commissions endowed with executive powers.

“I do not understand why the McCrory administration has taken the position that it has,” Rep. Chuck McGrady (R-Henderson), the author of Senate Bill 71, the coal ash bill, said, adding, “except the governor told me he took the position that there should be no other entity that could have a decision-making role over coal ash.”

Should SB71 become law and face another legal challenge, or if the governor fails to appoint commissioners to the coal ash commission, the duties and responsibilities of the commission would be absorbed by the Environmental Management Commission.

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