NC panel tied to Republicans holds sway on fracking rules

jmurawski@newsobserver.comJune 10, 2014 

  • Rules Review Commission

    Appointed by Senate president pro tempore

    Margaret Currin, chairwoman: Professor at Campbell Law School in Raleigh. Former U.S. attorney.

    John “Jay” Hemphill: Tax lawyer in private practice in Raleigh, former captain in the U.S. Air Force’s JAG Corps.

    Jeff Hyde: CEO of Aesthetic Images Photography in Greensboro, founder of Conservatives for Guilford County, 2010 candidate for N.C. Senate District 27.

    Faylene Whitaker: Owner of Whitaker Farms and Garden Centers in Randolph County.

    Appointed by speaker of the House

    Garth Dunklin: Practices commercial real-estate law in Charlotte and represents clients before the N.C. Real Estate Commission.

    Stephanie Mansur Simpson: Stay-at-home-mom in Raleigh, lawyer and former lobbyist for the N.C. Realtors Association.

    Anna Baird Choi: Raleigh lawyer, specializes in advising licensing boards and represents clients before licensing boards.

    Jeanette Doran: A member of the N.C. Review Board, which hears appeals of unemployment insurance claims, formerly a 2014 candidate for the N.C. Supreme Court and a former general counsel and executive director at the N.C. Institute for Constitutional Law in Raleigh.

    Ralph Walker: Member of the State Ethics Commission, former judge on the N.C. Court of Appeals and former director of the N.C. Administrative Office of the Courts.

The final state commission that will weigh in on the state’s fracking standards is a relatively little-known board of Republican appointees that includes a plant nursery owner, a former lobbyist turned stay-at-home mom, and a former state Senate candidate who has described government as a “tyranny.”

The N.C. Rules Review Commission has been cast into the spotlight by the state legislature’s recent vote to allow drilling permits to be issued without waiting for lawmakers to vote on fracking standards.

The way the law, which Gov. Pat McCrory signed last week, is written, the legislature will have the option of sending fracking standards back for revisions, but critics of fracking consider that unlikely.

The nine sitting rules commissioners were appointed by House and Senate Republican leaders who are eager for drilling to get underway, and fracking opponents say they don’t expect the rules commission to take action that would delay potential energy exploration.

“I would expect the RRC to not find many reasons to object to the rules,” said Mary Maclean Asbill, a lawyer for the Southern Environmental Law Center. “They all travel in lockstep.”

The commissioners are regular contributors to conservative causes and to Republican candidates, according to public records.

Only one, Ralph Walker, was appointed by Democrats in 2009 and has since been reappointed by Republican House Speaker Thom Tillis.

The Rules Review Commission is responsible for vetting regulations written by more than 100 state agencies, boards and commissions. They cover a plethora of professional licensing and public safety issues involving hair dressers, landscape architects, electricians, masseuses, surveyors, pharmacists, nursing home administrators and day care centers, among others. Fracking is the newest addition to the responsibilities.

The commissioners are typically not experts in any of the areas they review; their expertise is in the process of rule-making itself. Seven of the nine are lawyers, and several specialize in administrative law. One is a former U.S. Air Force lawyer and another is a former N.C. Appeals Court judge.

Despite occasional criticisms of the rules commission, Joe DeLuca, who retired last week as senior rules commission counsel after 25 years as a staff attorney, said it is almost unheard of for the commissioners to challenge a rule because they disagree with it on ideological grounds.

“They are supposed to defer to the agency,” DeLuca said. “Very often the commissioners may not like what the rule says, but it is very much within the agency’s authority to write the rule.”

The rules commission’s narrow legal task is limited to four areas. For rules to pass muster, the rules commission has to find they are authorized by state law, they are clear and necessary, and that the agency that wrote them followed proper protocol.

“We’re explicitly prohibited from considering the policy of a rule. We’re almost technicians,” said Jeanette Doran, one of the commissioners and the former executive director of the N.C. Institute for Constitutional Law.

The commissioners hold two-year terms and are paid a $200 stipend per monthly meeting. They typically hold other full-time jobs.

They also include members with partisan backgrounds and political ties. Commission Chairwoman Margaret Currin is a former U.S. attorney appointed in 1988 by the late U.S. Sen. Jesse Helms, and her husband was a legislative aide for the Republican stalwart. Currin could not be reached for comment.

Jeff Hyde, who runs a photo studio in Greensboro, once ran for the N.C. Senate and founded Conservatives for Guilford County. He denounced government as a “tyranny” that threatens personal liberty at a 2010 tea party event, but he said by email that he ran for public office on a conservative platform, not as a tea party candidate.

The fracking rules the commissioners will review are being written by the Mining and Energy Commission, which has been meeting for two years and is finalizing its work. It is planning to hold public hearings in Raleigh, Sanford and Wentworth in August before forwarding the regulatory package to the Rules Review Commission in November.

The August hearings will be the last opportunity for residents to register their objection to the substance of the fracking rules, which cover well shafts, buffer zones, chemical disclosure, testing of drinking water, and a host of other issues related to horizontal drilling and hydraulic fracturing.

The Rules Review Commission will also hold a hearing on the fracking rules, with public comment, but it will be limited in scope.

“We don’t get to consider the wisdom or the efficacy of the rule,” Doran said. “It always breaks my heart when people want to talk about the policy. They basically missed their opportunity by the time the rule gets to us.”

 

Murawski: 919-829-8932

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