July 2, 2018

Analysis: NC’s Battle for Regulatory Control


By Kirk Ross
Coastal Review Online



Environmental advocates are warning that a constitutional amendment on the ballot this fall will dramatically shift implementation of environmental policies, allowing for greater direct control by the legislature.

Last week, in the closing days of this year’s short session, legislators approved six constitutional amendments for the November ballot, among them a revision to the constitution’s separation of powers section in its Declaration of Rights, which has remained virtually unchanged since the state’s first constitution adopted in 1776.

The amendment would add a new section that reads “The legislative powers of the State government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law.”

Although proponents describe the bill as a move to clarify the legislature’s appointment authority, the change would undo legal precedents going back decades that spell out roles of the executive and legislative branch when it comes to appointments to state boards and commissions.

“It’s not a clarification, it’s an entire rewrite of state government,” Rep. Pricey Harrison, D-Guilford, said in an interview after the session adjourned Friday.

Rather than clarify the roles of each branch, she said, the legislature is asking for approval to expand its powers beyond policymaking and the creation of boards and commissions to full control over how the executive branch executes the law, a role that major constitutional court cases, including most recently McCrory v. Berger, have said is unconstitutional.

“They want to undo McCrory v. Berger and make it clear that the legislature is the ultimate authority,” she said. The worst-case scenario, she said, which would be constitutional if the amendment is approved, would be a sweeping restructuring that undoes all commissions and oversight boards.

In explaining the legislation, backers
acknowledge that the legislation would allow them broad power to alter the membership and composition of all state boards but have no plans to do so. Still, major changes in the composition of the boards is not unprecedented.

In 2013 after Pat McCrory’s election, a provision in the state budget ended the terms of all members of the Environmental Management Commission, the Coastal Resources Advisory Council and the Clean Water Management Trust Fund and all but four members of Coastal Resources Commission, allowing the new governor and the legislature to appoint its own slate of members.

Harrison said it’s important to understand that changes in state law would be required under the amendment legislation. Under the General Assembly’s adjournment resolution passed last week, the legislature is scheduled to return Nov. 27 to enact required legislation for amendments approved by voters.

The separation of powers changes, which amend sections of the Declaration of Rights in Article I, the duties of the governor in Article III and the powers of the General Assembly in Article II, are among those that become effective upon certification of the election results and require enacting legislation.

Harrison said that those changes and similar sections in proposed amendments on voter ID and judicial appointments were written to give the current legislature’s veto-proof majority an opportunity to restructure state government.

During last week’s often acrimonious debate on the amendments, House and Senate leaders rebuffed several attempts to delay new laws until the next legislature takes office in January.

At one point, Sen. Paul Lowe, D-Forsyth, was so frustrated that he introduced an amendment to the bill that “strips all power from the administration and transfers power to the General Assembly.” Lowe called on his GOP counterparts to at least be honest about what they were doing. It failed 43-3.

Derb Carter, state director of the Southern Environmental Law Center, said the separation of powers amendment is clearly a move by the legislature to overturn a ruling that went against it and gain control over executive authority.

“It’s just a raw power grab on the part of a legislature that knows and expects they’re going to lose their supermajority and this is their last chance to shoot for the moon,” Carter said.

Carter said there are discussions about a potential legal challenge, but he expects the focus to be on an all-out effort to educate voters on the consequences of such a change in the constitution. He said the ballot question is misleading and doesn’t say there would be a change in the separation of powers requirement.

“It doesn’t even mention the fundamental amendment of the state constitution to do away with what has been the longstanding separation of powers and the checks and balances that you learn are important in the eighth grade, he said. “This is a very big deal and it’s going to be important that citizens understand that, even though (the legislature) attempted to mislead them already.”

Harrison said she also expects to see an effort aimed at voting down the amendments, but she acknowledged the difficultly ahead in getting the message across that government is being fundamentally changed.

“We have a steep hill to climb to explain to voters what they’re actually doing by voting for these amendments,” she said.

Environmental Boards Focus of Fight

The state has more than 300 boards and commission, but only a few dozen have a substantial hand in carrying out policies. The state’s rule making boards and commissions like the Environmental Management Commission and the Coastal Resources Commission are given the job of translating legislative language into often highly detailed technical standards and practices. The system is designed to give the public an assurance of safety and the industries affected regulatory certainty about what they can and can’t do.

Striking a balance between the two when it comes to environmental issues has been at the heart of many of the legal struggles in North Carolina separation of powers cases.

One key case, Wallace v. Bone, settled whether legislators could appoint themselves to rule-making executive branch bodies, when the state Supreme Court ruled in 1982 that an attempt by the legislature to take control of the Environmental Management Commission violated the separation of powers requirement.

The EMC, which writes rules for implementation of nearly all of the state’s environmental statues, was entirely appointed by the governor prior to 1979. But as the state took on the enforcement responsibilities for new federal environmental laws such as the Clean Water Act, legislative leaders sought greater control over the rules and appointed two representatives and two senators to what was then a 13-member commission.

In its decision in Bone, the Supreme Court underlined the fundamental nature of separation of powers noting “There should be no doubt that the principle of separation of powers is a cornerstone of our state and federal governments.”

The court said the legislature had no part to play in the day-to-day operations of the environmental regulators.

“It is crystal clear to us that the duties of the EMC are administrative or executive in character and have no relation to the function of the legislative branch of government, which is to make laws,” the decision reads, adding that “the legislature cannot constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality.”

The court permitted legislators to remain on advisory boards, but as a result of the ruling, legislators were removed from 32 rule-making boards and commissions including the EMC, the Wildlife Resources Commission and the Board of Transportation.

The ruling in Bone did not, however, challenge the legislature’s power to create boards and appoint them. The limits to that power were put to the test two years ago when the state Supreme Court took up McCrory v. Berger, in which then-Gov. McCrory, joined by his predecessors Jim Hunt and James Martin, challenged the legislature’s appointments to the newly created Oil and Gas Commission, Mining Commission and the Coal Ash Management Commission assembled to investigate and implement solutions in the wake of the 2014 Dan River coal ash spill.

While the Supreme Court found that the legislature overstepped its authority in making a majority of the boards appointments, the ruling spelled out the difficulty in establishing a legal guideline that would apply to every case.

“We cannot adopt a categorical rule that would resolve every separation of powers challenge to the legislative appointment of executive officers,” the court wrote. “Because each statutory scheme will vary the degree of control that legislative appointment provisions confer on the General Assembly, we must resolve each challenge by carefully examining its specific factual and legal context. While the General Assembly’s ability to appoint an officer obviously does not give it the power to control what that officer does, we must examine the degree of control that the challenged legislation allows the General Assembly to exert over the execution of the laws.”

More recently, the ongoing tension between the executive and legislative branches turned into an open partisan conflict after Democrat Roy Cooper’s defeat of McCrory, a Republican.

Cooper almost immediately filed a challenge to changes to the elections board and other appointment powers made in late December 2016 and has filed subsequent challenges to other restructuring plans.

In floor debate last week on the constitutional amendment to change the separation of power section, Rep. David Lewis, R-Harnett, said the lawsuits had raised a lot of questions. The proposed amendment, he said, is an attempt to answer those questions.

 

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