A bill not vetoed
Published September 11, 2014
Editorial by Greensboro News-Record, September 11, 2014.
Gov. Pat McCrory waved his veto stamp at the legislature’s flawed coal ash cleanup bill, then he dropped it. He’ll let the measure become law without his signature, he said Tuesday.
The governor cited “major deficiencies that need to be corrected” but let them stand. He raised “constitutional, operational and funding concerns” but did not send the bill back for repairs.
He said he will seek an “advisory opinion” from the state Supreme Court about the constitutionality of a commission created by the legislature to oversee cleanup of Duke Energy coal ash ponds. The governor believes this commission, most of whose members will be appointed by legislative leaders, will be accountable to no one and usurp a function that should belong to the executive branch of government.
He has a point. This legislature regularly intrudes into matters that ought to be left to the executive or judicial branches as well as local governments. But the governor will not get an “advisory opinion” from the Supreme Court to back him up. If he did, it would carry no force of law.
There is a spotty history of Supreme Court advisory opinions in North Carolina. The court seems to have given the last word in 1985 when it responded to such a request from then-Lt. Gov. Bob Jordan and then-Speaker Liston Ramsey: “The North Carolina Constitution does not authorize the Supreme Court as a court to issue advisory opinions,” it said.
On occasion, individual justices speaking for themselves had offered advisory opinions, the court wrote, but “because these opinions have been, and constitutionally can only be, opinions of individual members of the court and not the court itself, they have not and could not have had the force of law.”
Offering an advisory opinion would amount to prejudging a case before arguments were made. Chief Justice Mark Martin said in an email Wednesday, when asked about the governor’s statement, “I cannot comment on matters that may come before the courts.” He added that he has not spoken to the governor or anyone else about this “and do not intend to do so.”
The governor’s statement said that, without an advisory opinion, he will “move forward with a lawsuit to challenge the legislature’s encroachment upon the executive branch.”
He held the tool in his hand to challenge that encroachment, and block it, but he chose not to use it.
McCrory praised some parts of the bill that requires Duke to clean out and close some coal ash ponds, including the Dan River facility that collapsed in February, causing a massive spill into the river. Other ponds would only have to be improved and capped. He noted that his own proposal was stronger, and he also expressed legitimate concerns that “many critical tasks” aren’t funded by the bill.
He could have added another omission. The bill does not hold Duke financially accountable for cleanup costs. Customers may end up paying.
Even sponsors of the bill acknowledge that it was just a start. They cobbled together a compromise after initial attempts to approve legislation failed. Lawmakers, after completing most of their business and going home in early August, were called back to Raleigh to pass the measure. They appeared to be in a hurry.
Yet, dealing with coal ash is a long-term project. The governor should propose the next steps and work more productively with the legislature in 2015 to do a better job of protecting North Carolina’s water from further harm.
