Gov. Pat McCrory on Tuesday announced he will let the coal ash bill become law without his signature, saying it contains important protections that need to go into effect immediately but also illegally undermines the authority of the executive branch.
The governor’s decision sets up a potential constitutional showdown with a state legislature controlled by his own party. He said he and Lt. Gov. Dan Forest will seek an advisory opinion from the state Supreme Court to clarify his separation of powers concern.
If the high court doesn’t provide that guidance, McCrory said the administration will file a lawsuit to challenge the General Assembly’s “encroachment upon the executive branch.”
The constitutional issue is that the bill gives the legislature six of the nine appointments to a coal ash commission created by the legislation to oversee the regulation and cleanup of coal ash ponds. McCrory thinks the administration should have control over who serves on the commission.
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McCrory’s announcement – in a three-page news release and a 7 -minute video – contradicts a televised interview last month in which he said he anticipated signing the bill despite his constitutional concerns.
With this legislation, North Carolina appears to have set up the first comprehensive regulatory scheme in the nation to oversee the closure of ponds and safe storage of coal ash. The issue wasn’t a topic of political discussion anywhere until a massive spill in Tennessee in 2008.
Several environmental groups last year pressed state regulators to do more to clean up the 33 ponds at 14 power plants in North Carolina. Then in February of this year, a huge spill from a Duke Energy plant poured coal ash into the Dan River.
The spill came amid accusations that the N.C. Department of Environment and Natural Resources wasn’t doing enough. That sparked the attention of federal criminal investigators, who have been looking into the issue for months.
McCrory’s video reiterates the administration’s claim that it has aggressively pushed Duke to clean up the power plant residue that has accumulated over nearly a century since it took over in 2013.
McCrory said his administration has had to pursue coal ash regulation after “decades of an out-of-sight, out-of-mind approach by previous governors or legislators, and the company where I proudly worked for 29 years ... Duke Energy.”
The bill, which will go into effect on Sept. 19, will prioritize the cleanup of the ponds. Environmental organizations have criticized it for not having strong enough enforcement provisions. It will also place the coal ash commission under the Department of Public Safety rather than the Department of Environment and Natural Resources, as a result of the allegations of lax enforcement.
McCrory tried to convince the legislature of his separation-of-powers argument earlier this year.
But the General Assembly proceeded based on assurance from its nonpartisan staff that the legislature appointing a majority of members to a board or commission was not only constitutional but had long been the practice.
Senate leader Phil Berger released a statement Tuesday night reacting to the governor’s mixed message.
“While it’s disappointing the governor refuses to endorse the strictest regulations on coal ash in the entire nation, it’s good news that this bipartisan bill will still become law,” Berger said. “The governor’s primary concern appears to be a desire to control the coal ash commission and avoid an independent barrier between his administration and former employer.”
D.J. Gerkin, a lawyer with the Southern Environmental Law Center, which has been embroiled in litigation with the administration over coal ash, criticized the governor’s announcement.
“The governor’s version of decisive action is failing to sign a fundamentally flawed bill and allowing it to become law,” Gerkin said. “Whether or not there is a commission that decides the fate of coal ash in North Carolina, the fundamental failure is the legislation puts off any real decisions for years into the future.”
Duke Energy spokeswoman Erin Culbert said: “We’re continuing our work toward safely closing ash basins across the state and planning for the best way to meet the aggressive timelines outlined in the legislation.”