The state House on Wednesday overwhelmingly approved a plan to reconstitute the Coal Ash Management Commission, which the state Supreme Court ruled the legislature had unconstitutionally created a year and a half ago.
The 86-25 vote sends the bill to the Senate, where its sponsor, Rep. Chuck McGrady, a Republican from Hendersonville, says he is optimistic it also has enough votes to pass and override a veto.
The bill renews a wrestling match over who controls the multi-billion-dollar task of cleaning up coal ash in North Carolina: the governor or the General Assembly. After the Supreme Court agreed with Gov. Pat McCrory that the legislature had overstepped its authority in creating an executive branch commission, the governor disbanded it. McCrory and top officials in his administration worked to defeat the bill this week, saying the governor would veto it and sue again.
After Wednesday’s vote, McCrory issued a statement saying the bill had been rushed and written in secret. It was first made public Tuesday afternoon.
“It’s disappointing to see legislation of this magnitude drafted behind closed doors,” McCrory said. “This bill is a blatant attempt to bypass state regulators and seek more favorable treatment from an unaccountable and unneeded bureaucracy that further delays the cleanup process.”
The bill creates an unusual alignment of Republican and Democratic lawmakers, Duke Energy and the N.C. Chamber pitted against McCrory, whose response to coal ash cleanup has been criticized by some environmental groups because he worked for the utility for two decades. The state enacted the nation’s first coal ash regulatory law following the spill into the Dan River at Eden in 2014.
Now it is McCrory accusing legislators of going soft on Duke Energy. The legislation has also divided environmental groups over whether it is tough enough on cleaning up the coal ash ponds.
“You made the hard choice two years ago,” McGrady, a former environmental advocate himself, exhorted his colleagues on the House floor. “Don’t back away from that because some groups, my former colleagues, are pushing to dig them up.”
The legislation, a rewritten Senate Bill 71, attempts to address the issues in the Supreme Court’s ruling by giving the governor the majority of appointments to the commission. The governor, however, says the commission cannot be reconstituted at all.
The bill would also require Duke Energy to provide piped water, or filters where there is no public hookup, to neighboring well owners and includes provisions to promote the use of coal ash in concrete and other materials.
The House has written a backup plan into the bill: If the governor vetoes the bill and the General Assembly overrides it, and if it then goes to court and McCrory refuses to appoint any members, then the entire coal ash regulation scheme would transfer to the Environmental Management Commission. It is an independent body with the majority of appointments coming from the governor.
The legislation also reconstitutes the Mining Commission and the Oil and Gas Commission, which were also affected by the Supreme Court ruling. It leaves in place fracking rules the Oil and Gas Commission adopted. An environmental group has sued the Oil and Gas Commission challenging those rules; it isn’t clear how the bill affects that lawsuit.
The N.C. Chamber wrote a letter to legislators on Tuesday saying DEQ’s tentative recommendations to excavate all 33 ponds in the state would result in “irrational costs” and “send a chilling message to the regulated community.” The Chamber favors returning to the original coal ash commission to safeguard against “overreaching regulations.”
Duke Energy supports the bill because the original intent was to give the Coal Ash Management Commission the responsibility to make recommendations based on safety, environmental and cost factors, along with considering the impact on electricity rates.
The utility contends most of the ponds could be capped in place, which is estimated to cost about $4 billion. If the company is required to excavate all the sites on a faster schedule, that will significantly increase costs to customers without measurable environmental benefits, Duke Energy has said.
The state chapter of the Sierra Club said the clean water provision was a “step in the right direction,” while the League of Conservation Voters calls it a “sweetheart deal” for Duke Energy.