N.C. General Assembly Overstepped Authority

(CN) - The North Carolina General Assembly exerted "too much control" over three environmental commissions in charge of coal ash clean up, fracking and mining, usurping Gov. Pat McCrory's powers, a divided state Supreme Court ruled.

Friday's ruling, written by Chief Justice Mark Martin, said the General Assembly violated the state constitution when it appointed a majority of the voting members to the Oil and Gas Commission, the Mining Commission and the Coal Ash Management Commission, all of which were created under the Energy Modernization Act and the Coal Ash Management Act of 2014.

McCrory and former governors Jim Hunt and Jim Martin sued state Senate leader Phil Berger, state House Speaker Tim Moore and the members of the Coal Ash Management Commission in November 2014 to, they said, restore the constitutional balance between the state's executive and legislative branches.

In March 2015, the Wake County Superior Court ruled the General Assembly did not violate the appointments clause of the constitution, but it did violate the constitution's separation of powers clause. Berger and other legislators appealed directly to the N.C. Supreme Court, which handed down its decision last week.

It said 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."

"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," Judge Martin wrote.

The Coal Ash Management Commission and Oil and Gas Commission each have nine members: three appointed by the governor and six appointed by the General Assembly. The Mining Commission is similarly weighted, with the majority of members being legislatively appointed members.

The Supreme Court's decision will require the General Assembly to rearrange the distribution of members, though details have not been announced.

But Justice Paul Martin Newby disagreed, in part, with his colleagues.

"This case presents the issue of whether the General Assembly has the constitutional power to fill a majority of positions on executive commissions it creates," he wrote. "Unlike the Federal Constitution, the state constitution is not an express grant of power but a limitation on power. All power not expressly granted to the federal government or limited by the constitution resides in the people and is exercised through the General Assembly.

"Since our original Constitution of 1776, except for a short time by explicit limitation, the General Assembly has had the constitutional authority to provide for the filling of statutory executive positions it creates," he continued. "As an exercise of the General Assembly's lawmaking power, this appointment authority, both constitutionally prescribed and jurisprudentially recognized, does not implicate separation of powers because under our jurisprudence the authority to appoint the official has never been deemed the power to control the appointee.

"Our state's constitutional text and history and this Court's precedent demonstrate that when the legislature statutorily enables itself to select the official, it is simply filling the position and not controlling the appointee. Because the statutes at issue here are constitutional, I must respectfully dissent in part," Newby wrote.

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