McCrory likely to sign coal ash bill despite concerns

by Craig Jarvis, News and Observer, August 25, 2014.

Gov. Pat McCrory appears ready to sign a bill regulating coal ash despite his concerns that it unconstitutionally usurps his power to appoint the majority of an oversight commission, a provision that he might challenge in court.

“I anticipate signing that,” McCrory said during an interview on “NC SPIN,” a syndicated TV show that aired on Sunday. “I’m not happy with the commission (provision), and we’re probably going to have to do a constitutional challenge to that commission.”

McCrory’s office did not respond Monday to requests for further information about how likely it is that the administration would file a lawsuit, on what legal claims it would be based and why he would sign a bill that contained a provision he didn’t think was legal. He has said it violates the separation of powers doctrine between the executive and legislative branches of government.

A June 24 memo by the Legislative Services Office advised Senate leader Phil Berger’s office that the General Assembly appointing a majority of members to a board or commission did not violate that doctrine. The idea for the commission came from the Senate.

“Unequivocally, this is not a violation,” wrote special counsel Gerry Cohen, who retired this month after 37 years with the legislature. “The constitutional history of our appointments clause has been construed repeatedly by the state Supreme Court specifically to allow legislative appointments, including the majority of members of an executive branch board.”

Sunday’s televised remarks were the first public indication the governor has given about whether he intended to sign, veto or allow to become law without his signature the state’s first coal ash regulation legislation. The General Assembly salvaged the bill on the final day of session Wednesday after disagreements between the House and Senate appeared to have killed it for this year.

The “NC SPIN” interview was taped on Wednesday night, and McCory said he hadn’t had a chance to read the entire bill yet. On Saturday, at an event in Mooresville, McCrory refused to tip his hand when a TV reporter asked about whether he would sign it.

“I’m reviewing the bill right now and I’ll be dealing with that within the next 30 days,” McCrory told a WSOC reporter.

He has 30 days from the time the legislature adjourned to take action on the bill. If he doesn’t, it will automatically become law.

McCrory’s objection is over the bill’s provision that allows the General Assembly to make the majority of appointments to a new nine-member Coal Ash Management Commission. The appointments are split evenly among the House, Senate and governor.

“I think this concept of creating commissions that are appointed by the legislature – or a majority by the legislature – is unconstitutional, regardless of the subject,” McCrory said on “NC SPIN.” “Because that means the legislature is doing the operations of state government, which is not their responsibility. I think there’s a constitutional issue there.”

McCrory made it clear in June that he was concerned about that provision, telling reporters he had to protect the authority of the executive branch. The next day, he vetoed a wide-ranging unemployment insurance bill because it would have shortened the terms for a three-member board that hears claims appeals. At one point, legislators had threatened to take away two of his appointments to the board, but relented. The final bill, however, would have shortened the terms of existing members of the Board of Review he had appointed in December.

McCrory brought that up in the TV interview. “I vetoed a good bill because they had 10 percent that was just bad politics,” the governor said.

A few days after the veto, McCrory’s general counsel warned legislators that the coal ash commission proposal violated the separation of powers doctrine.

McCrory also said on “NC SPIN” that establishing the commission under the Department of Public safety rather than the Department of Environment and Natural Resources “makes no sense, whatsoever.” The Senate wanted to keep the commission separate from DENR because an ongoing federal criminal investigation and environmentalists’ accusations have raised questions about the agency’s relationship with Duke Energy.

The bill would prioritize cleanup of the 33 ponds at 14 Duke Energy power plant sites. Legislators and the governor were motivated by the February spill of coal ash and wastewater into the Dan River from one of the sites.