Three-Judge Panel Sides With Gov. McCrory In Dispute Over Coal Ash Commission

Mar 17, 2015

Gov. Pat McCrory
Credit wikipedia

Leaders of the North Carolina General Assembly violated the separation of powers among the three branches of government when they created three commissions in which lawmakers appoint the majority of the members, a judicial panel said on Monday. 

Three judges from the North Carolina Superior Court sided Gov. Pat McCrory. The Governor brought the suit with two former governors, striking down the General Assembly's process for appointing members to three environmental commissions, and invalidating the independence of a commission tasked to oversee clean-up of the state's coal ash dumps.

"We hold that the Legislature cannot constitutionally create that commission as an independent instrumentality of the state, independent of each of the three branches of government," the judges wrote in their opinion. [Read the full decision (PDF)]

The ruling is the latest development in long-standing tensions between North Carolina's chief executive and its legislature—all currently held by Republicans—and it could define the constitutional relationship between the two branches.

The offices of Senate Leader Phil Berger and House Speaker Tim Moore conferred with their attorneys on Monday afternoon and questioned the panel's decision. They said they planned to appeal the decision.

"The decision that we have at this point is totally inconsistent with the practice that has been adhered to in North Carolina for well over 100 years," Berger said.

But John Wester, the Charlotte attorney representing McCrory and former Democratic Gov. Jim Hunt and Republican Gov. Jim Martin, said the panel's decision was a clear repudiation on Senate and House leaders' encroachment on the governor's authority.

"Today's decision recognizes the essential role of separation of powers in our state's government," Wester said. "And we are most gratified by the unanimous ruling of the judges."

Wester said he expected the Coal Ash Management Commission, which was created last summer to oversee clean up Duke Energy's coal ash dumps, to continue its work. If the panel's decision stands, the governor will be able to appoint all members of the commission, Wester said. Legislative leaders appointed six of the commissions nine members last year.