NC governor sues his GOP allies in the legislature over creation of NC coal ash commission

Associated Press

Gov. Pat McCrory and two of his predecessors sued North Carolina's top legislators Thursday over the makeup of the state's new Coal Ash Management Commission and other panels approved this year by the General Assembly.

McCrory and former Govs. Jim Hunt and Jim Martin filed suit in Wake County court against Senate leader Phil Berger and House Speaker Thom Tillis.

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The key issue in the lawsuit is the new nine-member commission created by the legislature in response to the massive Feb. 2 spill at a Duke Energy dump in Eden, which coated 70 miles of the Dan River in gray sludge. Under the legislation, which became law without McCrory's signature, legislative leaders appoint six members of the commission and the governor appoints three.

McCrory, Martin, Berger and Tillis are all Republicans. Hunt is a Democrat.

The three governors contend the board's composition violates North Carolina's constitutional separation of powers by granting the legislature control of an environmental enforcement activity that resides with the executive branch.

The commission is tasked with overseeing the cleanup of Duke's 33 coal ash pits across the state. The ash that remains after coal is burned to generate electricity contains numerous toxic heavy metals, including lead, arsenic and mercury.

Under the new law, Duke is required to remove its ash at four priority sites within 5 years. The remaining dumps are to be either removed or capped with a layer of plastic and dirt by 2029. The new commission is set to hold its first meeting on Friday.

The lawsuit also questions the creation of two other new panels starting up next summer — an Oil and Gas Commission and Mining Commission — as well as a proposed panel to oversee Medicaid that only passed the Senate.

"The disagreement among the two branches is not acrimonious, but it is of fundamental importance," McCrory said in a written statement. "I have too much respect for North Carolina's constitution to allow the growing encroachment of the legislative branch into the responsibilities the people of North Carolina have vested in the executive branch."

In a joint statement, Berger and Tillis said the legal reasoning behind the governors' lawsuit is flawed. McCrory could also have vetoed the legislation and chose not to, they said.

"The General Assembly's right to appoint members to independent boards - which are beholden to no single appointing authority and provide truly independent oversight - is far from new and has long been upheld by our state Supreme Court," the legislative leaders said. "Unfortunately, the governor's costly and time-consuming lawsuit to ensure he picks the majority of regulatory board members ignores history and detracts from their important work."

Berger has previously said it was essential to create an independent board to oversee Duke's cleanup of the coal ash dumps because McCrory worked for the company for 29 years prior to becoming governor. Tillis was elected earlier this month to represent North Carolina in the U.S. Senate. Hunt and Martin could not immediately be reached for comment.

The relationship between Duke and state officials has been under close scrutiny since the spill, including an ongoing federal criminal investigation. Environmental groups have repeatedly criticized decisions by environmental regulators in McCrory's administration that they contend improperly favored the governor's former employer.

The lawsuit is expected to be among the first tried under a new method approved last summer that directs litigation challenging a law's constitutionality be considered by a panel of three Superior Court judges, chosen by the chief justice from each region of the state. The law came after individual trial judges kept striking down laws Republican lawmakers have approved recently. Any appeal would go directly to the state Supreme Court.

McCrory has hired private lawyers to pursue the lawsuit. The governor's office did not immediately provide figures for how much taxpayer money it is expected they will be paid in legal fees.

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Associated Press writer Gary D. Robertson contributed to this story.

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