Under the Dome

Demise of NC coal ash commission raises issues

Gov. Pat McCrory’s decision to shut down a commission that the legislature created to independently oversee coal ash cleanup, returning oversight solely to his administration, raises legal questions and concerns.

The McCrory administration says its decision was based on its interpretation of a state Supreme Court ruling in January in the governor’s separation-of-powers lawsuit against legislative leaders. When that ruling was made, the governor’s own attorney was among those who presumed that to comply with it, the governor must be given the power to appoint the majority of the board’s nine members, not disband the panel.

Legislation was being drafted in the House to do that in the upcoming short session of the General Assembly. Legislators were not aware of McCrory’s decision to eliminate the Coal Ash Management Commission until last week.

Word of the change surfaced Thursday when The Charlotte Observer reported that the commission staff had informed legislative leaders Monday in an email that it had just been told the commission no longer existed. The commission’s chairman, Michael Jacobs, had been notified the previous Friday.

The administration says it based its action on an interpretation of the court ruling, which held that the governor has the authority to appoint the majority of commission members. The ruling didn’t directly address whether the legislature’s creation of the commission was unconstitutional.

But the McCrory administration says that since the appointments provision in the 2014 law that created the commission was found to be unconstitutional, the commission itself is unconstitutional.

“It was declared unconstitutional by the Supreme Court,” spokesman Graham Wilson said in an email Friday. “It, therefore, no longer existed and could conduct no work. You don’t have to ‘disband’ an entity that no longer exists.”

Also on Friday, a spokeswoman for the state Department of Environmental Quality pointed to a part of the court ruling that DEQ says provides the legal basis to disband the commission. In that section, the justices say the governor must have sufficient control over commissions that perform executive branch functions.

The court defines sufficient control as having the authority to appoint, supervise and remove members of the commission.

McCrory’s lawsuit also challenged a requirement in the legislation that required that the commission be independent of the governor’s administration. The Supreme Court said that question was moot because it had already ruled on the appointments provision. At the same time, the justices vacated a lower court’s ruling that had found the independence provision unconstitutional. It’s unclear whether that means the commission is legally viable, but it does mean the panel should be independent.

In February, Bob Stephens, the governor’s counsel, said new members would have to be appointed to the commission to replace the six members the General Assembly appointed. He said new appointments also would have to be made to two other commissions declared unconstitutional by the ruling: the now-defunct Mining and Energy Commission and its replacement, the Oil and Gas Commission.

On March 11, Stephens wrote to the chairman of the coal commission informing him that as a result of the Supreme Court ruling the commission “no longer exists.” Stephens directed the commission and its three-member staff to take no further action. The executive director has resigned and the contract with the general counsel has ended, according to the department. An administrative assistant is awaiting reassignment.

The legislature placed the commission in the public safety agency to keep it independent of the governor. Legislators had cited McCrory’s longtime employment with Duke Energy as a concern that he might have a conflict of interest when it comes to coal ash regulation: The utility owns all the state’s ash storage ponds for the residue from coal-fired power plants.

Environmentalists have accused the administration of being lax on coal ash, and that criticism heightened after a 2014 coal ash spill into the Dan River. The spill brought the problem of what to do with the material to lawmakers’ attention, and that led to the Coal Ash Management Act that year. McCrory, who warned from the beginning that he opposed creating a legislature-controlled commission, let the bill become law without signing it.

The commission was formed to approve the priorities for which coal ash basins to close and clean up first. The Department of Environmental Quality, part of McCrory’s Cabinet, has been conducting public meetings throughout the state this month on its proposed schedule.

There was no immediate indication of what the General Assembly might do in response. The state chapter of the Sierra Club and at least one state legislator active in environmental issues, Rep. Chuck McGrady, a Republican from Hendersonville, say they thought the upshot of the court ruling was that the governor would appoint new members, not disband the commission.

“We continue to evaluate the Supreme Court ruling, and are aware of the executive branch’s actions,” said Amy Auth, spokeswoman for Senate Leader Phil Berger.

A spokesman for House Speaker Tim Moore said that chamber’s Republican caucus will have to discuss whether to take further action.

An earlier version of this story incorrectly said the court defined the governor’s authority to “appoint, supervise or remove.” The ruling required all three of those tenants, not just one.

Craig Jarvis: 919-829-4576, @CraigJ_NandO