| July 2, 2018
Analysis: NC’s Battle for Regulatory Control
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
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
“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
“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
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
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.