North Carolina court rejects framework for new coal ash commission

North Carolina Gov. Pat McCrory was declaring victory on March 16 after a unanimous ruling that day by a three-judge panel which upheld the governor’s challenge involving the use of commissions to perform regulatory responsibilities assigned to the Executive Branch.

One of those commissions set up by the state legislature, in the wake of last year’s big coal ash spill at Duke Energy’s shut Dan River power plant, was on coal ash management. The ruling was out of the Wake County Superior Court.

“This historic and unanimous ruling respects and restores the separation of powers,” said McCrory. “I’m proud to stand up for our Constitution and the citizens of North Carolina. I’d like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort to protect the principles of our state.”

Said the court ruling by way of background: “In the complaint, Patrick L. McCrory, Governor of the State of North Carolina, along with two former Governors, James B. Hunt, Jr. and James G. Martin, challenge the Legislature’s mandate for the appointment of commissioners for three new commissions and two collateral provisions of the Coal Ash Management Act. In 2014, the Legislature created the Oil and Gas Commission, the Mining Commission, and the Coal Ash Commission, the members of which are appointed by the Governor and the Legislature.

“Contending that the appointment of the members of these commissions by the Legislature violates the North Carolina Constitution, the Governors request that the Court invalidate the Legislature’s appointment powers and grant the Governor the power to appoint every member of each commission. In particular, the Governors submit that certain statutory provisions relating to three newly created executive branch commissions violate the Separation-of-Powers Clause, Executive Power Clauses, and Appointments Clause of the North Carolina Constitution.”

The court ruled: “We hold that each of the three challenged enactments of the Legislature at issue in this case violate Section 6 of Article I of the Constitution of this State. In arriving at this conclusion, we have considered, in addition to the decision of our Supreme Court in Wallace v. Bone, supra. as well as the history of the separation of powers in our state and nation, other decisions of our Supreme Court and the decisions of other jurisdictions in this country respecting the principle of separation of powers and the specific provisions of our constitution and the statutes involved.”