North Carolina’s coal ash wars returned last week in a bill that the General Assembly is likely to send to the governor, triggering a predictable chain of events:
The governor will veto it, the legislature will override the veto and it will end up back in court, where Gov. Pat McCrory won this battle the last time around.
Bob Stephens, the governor’s counsel, pleaded with legislators to avoid fighting it all over again. The House responded by passing the bill overwhelmingly, and the Senate is poised to do the same this week.
The legislation, Senate Bill 71, would do two things: deliver safe drinking water to well owners who live near Duke Energy’s leaking coal ash plants, and reconstitute a citizen commission to check on how aggressively the administration regulates the cleanup of coal ash basins around the state.
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The proposal is as controversial as it is complex, in part because of the legislature’s insistence on establishing an oversight panel after the state Supreme Court ruled lawmakers had retained too much authority in creating it, and after McCrory then disbanded it. But controversy isn’t slowing it down.
“It looks like, largely, there’s a good consensus among legislators on what they want to do,” Robin Smith, a former state regulator who now has an environmental law practice in Chapel Hill, said Friday. “It sounds like it will all get worked out. On an issue as contentious as this, a bill as complicated, that’s somewhat unusual.”
Safe drinking water
Several hundred well owners were told last year not to drink their water, pending further testing to see if coal ash contaminants have polluted their supplies. This spring the state rescinded that notice, but many people don’t trust the utility or state regulators and want to be hooked up to municipal water systems.
This would make that happen at Duke Energy’s expense, providing permanent connections to piped water. However, if a state water authority determines that an individual hookup is “cost-prohibitive,” then the utility would only have to provide a filtration system instead.
The bill says those water hookups would go to well owners whose water exceeds federal standards or those with groundwater constituents associated with coal ash ponds. But there is not definitive proof that elevated levels of contaminants in private wells come from the coal ash ponds, and some environmentalists worry that is an escape hatch for Duke Energy.
Rep. Chuck McGrady, a Republican from Hendersonville who is the bill’s sponsor, is working with senators on the wording in that provision to clarify who qualifies for water connections.
Coal ash commission resurrected
The real controversy in the bill is the legislature insisting on an oversight commission. The bill’s authors included wording to satisfy the Supreme Court’s ruling that the 2014 coal ash regulation law deprived the governor of a majority of appointments.
So the bill gives the governor most of the appointments and establishes the commission in one of the governor’s cabinet agencies, and underlines that it is not independent of the administration.
Stephens, the governor’s counsel, points out the Supreme Court outlined three requirements to establish control of a commission: the authority to appoint (without confirmation by the legislature, as the bill requires), to supervise and to fire at will. Legislative attorneys don’t agree with Stephens and, like Smith, say the ruling was unclear.
McGrady, Smith and others also say the governor’s opposition to the legislature creating any citizen commissions with executive authority potentially threatens other already-established panels, such as the Environmental Management Commission.
Smith noted in a recent blog post that citizen commissions not only provide a check on the administration, but they also bring expertise and experience as they represent specific backgrounds.
“Given the different perspectives among commission members and a perch outside state government bureaucracy, commissions will not always see an issue in quite the same way a governor’s political appointees do,” Smith wrote.
McCrory takes the opposite view. Citizen entities like the Environmental Management Commission and the Coal Ash Management Commission, which approve or reject decisions made by the Department of Environmental Quality, take on more authority than cabinet agencies, Stephens wrote legislators. They “pose an exceptional threat to the governor’s duty to execute the laws,” Stephens wrote.
The Environmental Management Commission is also the bill’s backup plan. If the governor ties this bill up in court, then the duties of the coal ash commission would transfer to the EMC – a strategy that Stephens says is also constitutionally defective.
“There is no sound basis or need for an independent commission that the court has said the governor must control,” Stephens wrote. “It has already generated to much controversy. It’s time to retire it for good.”
Meanwhile, neighbors worry
The legislation would delay final determination of which of the 33 ash basins must be closed first, based on their threat to the environment and other factors. DEQ tentatively wants Duke Energy to excavate all of the ponds, but is open to reviewing that in 18 months as repairs are made to pond dams. The utility thinks most of the ponds can be left where they are and capped.
The bill would give the coal ash commission up to 240 days to make that decision. It would give Duke Energy until September 2017 to come up with a plan for alternative water supplies, while DEQ’s recommendation would require water connections be in place in 18 months.
Environmental groups say public health and safety is at risk while politicians bicker.
“For the second time in two years, the disagreement between the legislature and the governor over separation of powers issues has interfered with and delayed the state taking action to clean up the millions of tons of coal ash stored in unlined pits across North Carolina,” the state chapter of the Sierra Club said in a statement last week.