North Carolina high court sides with governor in dispute over commissions

The North Carolina Supreme Court on Jan. 29 ruled in a case involving the establishment by the state General Assembly of three commissions, including a coal ash management commission created after a 2014 coal ash spill at Duke Energy‘s Dan River power plant.

Gov. Pat McCory and other state officials brought the case against the General Assembly. In this case, the plaintiffs challenged legislation that authorizes the General Assembly to appoint a majority of the voting members of these three administrative commissions. Plaintiffs contend that, by giving itself the power to appoint commission members, the General Assembly has usurped Gov. McCrory’s constitutional appointment power and interfered with his ability to take care that the laws are faithfully executed.

Plaintiffs’ contentions raise two important questions about the function and structure of state government:

  • does the appointments clause in Article III, Section 5(8) of the state constitution prohibit the General Assembly from appointing statutory officers to administrative commissions?;
  • and, if not, do the specific appointment provisions challenged in this case violate the separation of powers clause in Article I, Section 6?

“We hold that, while the appointments clause itself places no restrictions on the General Assembly’s ability to appoint statutory officers, the challenged provisions violate the separation of powers clause,” said the Jan. 29 decision. “In short, the legislative branch has exerted too much control over commissions that have final executive authority. By doing so, it has prevented the Governor from performing his express constitutional duty to take care that the laws are faithfully executed.”

The Energy Modernization Act and the Coal Ash Management Act of 2014 created three administrative commissions that are housed in the executive branch of government: the Oil and Gas Commission, the Mining Commission, and the Coal Ash Management Commission. The Acts also specify how commission members will be appointed and how they may be removed.

  • The Oil and Gas Commission is housed in the Department of Environment and Natural Resources (DENR) and has the power to promulgate rules, make determinations, and issue orders consistent with the Oil and Gas Conservation Act. The commission has nine members: three appointed by the governor and six appointed by the General Assembly.
  • Like the Oil and Gas Commission, the Mining Commission is housed in DENR. The Mining Commission has the power to promulgate mining rules and affirm, modify, or overrule permit decisions that DENR makes. This commission has eight members: two appointed by the governor; four appointed by the General Assembly; the chair of the North Carolina State University Minerals Research Laboratory Advisory Committee; and the State Geologist, who is ex officio and non-voting.
  • The Coal Ash Management Commission is administratively located in the Division of Emergency Management of the Department of Public Safety but is expressly required to exercise its powers and duties “independently,” without “the supervision, direction, or control of the Division or Department.” This commission has the power to review and approve coal ash surface impoundment classifications and closure plans that DENR proposes. The commission has nine members: three appointed by the governor and six appointed by the General Assembly. The governor appoints the chair of the Coal Ash Management Commission from among the nine members, and that member serves as chair at the pleasure of the Governor. As with the other two commissions, the governor may remove any member of the Coal Ash Management Commission for misfeasance, malfeasance, or nonfeasance.

In November 2014, plaintiffs filed a complaint in Superior Court, Wake County, that challenged the constitutionality of certain provisions in the Acts. Plaintiffs argued that the provisions authorizing the General Assembly to appoint members to the commissions violate the appointments clause in Article III, Section 5(8) and the separation of powers clause in Article I, Section 6. Plaintiffs also argued that the provision requiring the Coal Ash Management Commission to exercise its powers and duties independently of the Division of Emergency Management and the Department of Public Safety violates Article I, Section 6 and Article III, Sections 1 and 5(4). Plaintiffs sought a declaration that the challenged provisions are unconstitutional.

In addition, because the General Assembly had already made appointments to the Coal Ash Management Commission, plaintiffs requested that those appointees be removed.

In March 2015, a three-judge panel of the superior court determined that the challenged appointment provisions did not violate the appointments clause but did violate the separation of powers clause. The panel also determined that the Coal Ash Management Commission’s independent status violated the separation of powers clause. Finally, the panel dismissed without prejudice plaintiffs’ action to remove Coal Ash Management Commission appointees.

Said the Jan. 29 Supreme Court decision: “When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints. When those officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented in any area of the law that the commission regulates. As a result, the Governor cannot take care that the laws are faithfully executed in that area. The separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.