Under the Dome

Lawsuits over appointment power share arguments

Gov. Pat McCrory’s administration is in the unusual position of appearing to argue against itself in a lawsuit brought by environmentalists challenging the authority of the state Mining and Energy Commission.

The environmentalists want the commission, which developed fracking rules, declared unconstitutional and its work null and void because the legislature gave itself the authority to appoint eight of its 13 members, leaving the rest to the governor. That gave the legislature the majority of appointments over an executive branch board.

In its motion for a preliminary injunction putting the commission’s work on hold, environmentalists cite the standard for such an order: showing that they are likely to succeed on the merits of their case. They base that likelihood of success on the fact that a three-judge panel recently ruled in the governor’s favor in a separate lawsuit that also challenges the legislature’s authority to control boards and commissions in the executive branch, including the Mining and Energy Commission.

Last month the commission authorized its attorneys from the state Department of Justice to pursue possible resolution of that motion. But the state Department of Environment and Natural Resources, which was also named as a defendant in the lawsuit, didn’t agree to do that and hired outside counsel instead.

So, that could set up a legal fight in which the McCrory administration could be arguing against environmentalists who are citing the governor’s own legal victory in their case.

Because it is pending litigation, DENR wouldn’t go into details with Dome. But spokeswoman Crystal Feldman responded by email on Friday: “DENR’s position is entirely consistent with the constitutional issues raised by governor’s lawsuit.”

The state Supreme Court, meanwhile, is scheduled to consider an appeal of the ruling in the governor’s lawsuit in June. Justice Department attorneys want to postpone any further action in the environmentalists’ lawsuit until Supreme Court rules on the governor’s suit.

DENR has hired the private law firm Kilpatrick Townsend & Stockton to represent it.

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