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Environmental Health

State Supreme Court Rules Against Coal Ash, Fracking Commissions


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The justices say the General Assembly usurped Gov. McCrory’s power by appointing a majority of members to the commissions.

By Gabe Rivin

Two laws addressing coal ash and natural gas drilling are unconstitutional, the N.C. Supreme Court ruled on Friday.

In a highly anticipated ruling, the court found that the laws – the Energy Modernization Act and the Coal Ash Management Act – usurp Gov. Pat McCrory’s power to execute state laws, thereby violating the state’s constitution.

DENR Secretary John Skvarla and Gov. Pat McCrory toured the site of the coal ash pond near Eden, N.C. where a pipe ruptured Sunday, spilling hundreds of thousands of gallons of ash into the Dan River. Photo courtesy

DENR Sec. John Skvarla and Gov. Pat McCrory toured the site of the coal ash pond near Eden where a pipe ruptured in February 2014, spilling hundreds of thousands of gallons of ash into the Dan River. McCrory was handed a large legal victory, with the Supreme Court ruling in his favor in a case about political appointments to commissions that include one overseeing coal ash removal. Photo courtesy governor’s office

The decision in McCrory v Berger looked at three state commissions: the Coal Ash Management Commission, which has final say over plans to clean up Duke Energy’s coal ash; the Oil and Gas Commission, which regulates gas drilling, including hydraulic fracturing, or fracking; and the Mining Commission, which regulates mining in North Carolina.

The two laws that created the commissions, and which McCrory signed in 2014, allow the General Assembly to appoint a majority of members to the commissions. In its ruling, the Supreme Court found that this violates the state constitution.

“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,” the justices wrote in their decision. “The separation of powers clause [in the constitution] 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.”

The court’s decision is significant because the commissions establish rules with broad implications for the public’s health.

The Coal Ash Management Commission, for instance, is overseeing a cleanup process for some 264 billion pounds of coal ash, which state environment officials say is contaminating groundwater. And the Oil and Gas Commission has jurisdiction over numerous rules for gas drilling, from drilling’s production of air pollution to the ways that drillers will dispose of potentially radioactive wastewater.

But both commissions have been on pause for months with the Supreme Court’s decision pending.

Next steps

The justices made clear that by giving itself power to appoint a majority of commission members the General Assembly usurped McCrory’s power under the state constitution.

What isn’t clear is the next set of steps to remedy the situation.

“The Supreme Court did not provide guidance about the implementation of its order,” said D.J. Gerken, an attorney with the Southern Environmental Law Center.

What that likely means, Gerken said, is that the General Assembly will need to pass new legislation that complies with the court’s ruling. McCrory would need to sign that legislation.

Until then, the commissions will not be able to establish quorums to operate, he said.

Also unclear at the moment is the fate of another, related lawsuit. In that suit, environmentalists sought to piggyback off McCrory v Berger, and prevent the implementation of rules developed by the Oil and Gas Commission’s predecessor, the Mining and Energy Commission.

If successful, this suit could invalidate a broad set of rules for gas drilling, said Vik Rao, the former chair of the Mining and Energy Commission.

“If the MEC is declared unconstitutional, then it’ll be going back to the days of no rules,” he said.

A Superior Court judge in May partially ruled in favor of the environmentalists and prevented the state from accepting drilling applications, pending the Supreme Court’s ruling in McCrory v Berger. But the Supreme Court did not explicitly rule on this separate lawsuit. Gerken said that this suit will likely remain a decision for the lower court.

McCrory, who was joined in his suit by former governors Jim Hunt and Jim Martin, pledged to work with the General Assembly to move forward from the lawsuit.

“We will work with the General Assembly to implement this decision as we together continue to make state government more efficient and accountable,” he said in a brief press statement.

As for the decision’s immediate effects on the commissions, McCrory’s chief legal counsel, Bob Stephens, wrote in an email, “We’re still studying the Opinion and can’t comment, at this time, about the effect on these commissions.”

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