A repeat of a clash between the governor and the legislature erupted Tuesday when a House committee passed a bill to reconstitute the coal ash commission, a panel the N.C. Supreme Court ruled was an unconstitutional intrusion on the executive branch’s authority.
The commission was tasked with reviewing the state environmental agency’s classifications of which coal ash storage basins need to be closed first, and which need to be excavated or capped and left in place.
Gov. Pat McCrory’s legal counsel and top environmental officials attended the unscheduled committee meeting held at the end of the day to stress that if the General Assembly passes the bill McCrory will veto it and sue lawmakers again. The counsel, Bob Stephens, had warned the legislature in 2014 that giving the General Assembly the majority of appointments to the commission was unconstitutional, but the bill was passed anyway.
“My message is, let’s don’t relive history here,” Stephens said. “We know what happened the first time. Let’s don’t do it again. Nobody wants that. The governor does not want that.”
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The House Rules Committee approved the bill on a split voice vote. It goes to the House Appropriations Committee on Wednesday.
The bill would also require Duke Energy to provide permanent connection to piped water supplies for neighbors of coal ash basins. About 300 private well owners have been living on bottled water provided by Duke for the past year.
The Supreme Court ruling in January was an affirmation of the power of the executive branch, and McCrory subsequently disbanded the commission. The panel was created by the 2014 Coal Ash Management Act as a safeguard against what some legislators said might be undue influence on the McCrory administration by Duke Energy, his former employer.
The administration is now arguing that the appointments outlined in the bill would still be unconstitutional because they do not give the governor sufficient authority and supervision. House leadership attorneys, however, disagree and say the Supreme Court decision didn’t provide clear guidance on appointments to the commission.
The proposed bill would give the governor five appointments and the legislature two. Originally, the governor, House and Senate each had three appointments, giving the legislature control. But Stephens said the ruling means the governor has to make the majority of appointments, have the authority to supervise the panel, and be able to remove at will the members he appoints.
Rep. Chuck McGrady, a Republican from Hendersonville who is sponsoring the legislation, said if it becomes law it could take a year for the newly constituted commission to complete its main job.
Duke Energy said it supports the bill and reconstituting the commission. Last week, the state environmental agency recommended accelerating the closure and cleanup of coal ash ponds more aggressively than the utility thinks is necessary.