Two years ago, the General Assembly passed the Coal Ash Management Act of 2014. It basically set up a regulatory scheme which would require the cleanup of Duke Energy’s coal ash basins and ponds. The NC Department of Environmental Quality (DEQ) was tasked with rating the risk of several dozen coal ash basins, and that rating would determine what type of cleanup would occur and on what schedule. The higher risk basins would be cleaned up first, and the coal ash put in lined facilities; the lower risk basins would be cleaned up last, and the cleanup might not involve storage in lined facilities. After DEQ made its risk classifications, a new body, the Coal Ash Management Commission, was given the task of evaluating those recommendations and making a final decision.
Governor McCrory signed the legislation, and he and the legislature made appointments to the Commission. The Commission began its work, but a few months later, McCrory sued, claiming that the Commission was unconstitutional since the legislature had impinged on his powers by establishing the commission.
At the time, the focus was on the appointments. Six of the nine appointments were made by the legislature, three by the House and three by the Senate, and the argument was that a commission with a majority of appointments made by the legislature was a violation of the Separation-of-Powers clause, the Executive Power Clauses, and Appointments Clause of the North Carolina Constitution [N.C. Const. Art. I, sec. 6; Art. 111, sec 1, Art. III, sec. 5(4); Art. III, sec. 5(8)]. Over a year later, the NC Supreme Court held, among other things, that “the challenged appointment provisions violate the separation of powers clause.”
Upon learning of the decision, I had a bill drawn up to fix the problem, assuming that if the majority of the appointments were made by the governor that the commission would be constitutional. Since we were expecting a special session, I proposed taking up the matter then. In passing, I spoke to Governor McCrory’s legal counsel who said there were more problems with the commission than just the appointments, but that discussion became moot when legislature leaders decided not to take up the matter during the special session.
Thereafter, as Co-Chair of the Environmental Review Commission (ERC), I tried to hold oversight hearings on the subject of coal ash, but except for a presentation by DEQ in January, the Senate wouldn’t let the ERC do any oversight. I badgered Senate leadership about putting forward a fix to the appointments to the Coal Ash Management Commission and two other commissions that had been the subject of the NC Supreme Court decision. Meanwhile, the McCrory Administration terminated the Coal Ash Management Commission declaring any commission that oversaw departments reporting to the Governor was unconstitutional. In other words, that there could be no coal ash commission.
While I didn’t read McCrory v. Berger to be that expansive, it didn’t matter because legislative leaders seemed disinclined to take action. That all changed in mid-May when I was asked to move a “coal ash fix” — meaning a bill to put the Coal Ash Management Commission back in place. What drove that decision was a realization that DEQ was due to put forth its risk classification and, without a second level of review, those decisions would be final.
A few days before DEQ was required to issue its decision on the risk of the coal ash basins, I put forth draft legislation which was supposed to be taken up in the House Rules Committee. Using a Senate bill — Senate Bill 71 [Stagger RRC Member Terms] — that had passed the Senate and was sitting in the House, the bill would have been stripped and the new provisions relating to the appointments to the three commissions added. That effort was aborted when House Members indicated they wanted more time to consider the bill.
Meanwhile, DEQ announced its risk classifications, and it rated all of the coal ash basins as high or intermediate risk, meaning that they all needed to be dug up and most of them on an expedited schedule. DEQ’s decision pushed the House to move forward with a slightly revised version of S 71, now entitled Commission Appointment Modifications. After an extended discussion in the House Republican Caucus, including a visit from the Governor’s counsel, Robert Stephens, and DEQ Secretary Donald van der Vaart, the proposed bill was heard in the Rules Committee, which gave it a favorable recommendation.
Ultimately, the bill passed the House with a strong bipartisan majority and the Senate passed it by a vote of 46-1. Meanwhile, Governor McCrory said he’d veto the bill, renewing his objection to any commission that would play a role in making the risk classifications.
Without getting into the weeds, S 71 reconstituted the Coal Ash Management Commission and two other commissions, giving the new commission addition time to review DEQ’s risk classifications and required Duke Energy to provide permanent alternative water supplies for residents surrounding the coal ash basins. The latter was a new, major addition to the bill. While many property owners were getting bottle water from Duke Energy, the bill would have required Duke Energy to provide piped water.
What happened next is hard to explain. Since the bill was a Senate bill, it was returned to the Senate for an expected veto override vote. With large majorities voting for the bill previously, everyone expected the veto would be overridden and the Governor would then file suit again. That didn’t happen.
On the day (last Wednesday) the Senate was expected to take up the bill, a spokesman for Senate Pro Tem Phil Berger (R-Rockingham) explained a meeting with Duke Energy as follows: “The purpose of the meeting was to inform Duke it is unlikely the Senate will act on the company’s request to override the governor’s veto, and that we are working with the governor on a resolution that addresses his concerns, avoids a long legal battle and delivers clean drinking water to impacted individuals quickly.”
So what does that mean?
It means that beginning on Thursday, I started working on a bill. Before leaving for home on Thursday, I met with Senator Berger to talk about what needed to be in a new bill based on a meeting he had with Governor McCrory. I then met with Duke Energy to talk about my thoughts on a new bill, based on my discussion with Senator Berger. I also talked with several environmental leaders and tried to explain through social media what would likely happen next. When home on Friday, I talked with Senate staff, arranged a meeting with a group of environmental leaders on Monday, and communicated with the Governor’s staff. Thereafter, a meeting was arranged with Secretary van der Vaart for Monday.
And that is where things stand. I’m working on a bill in consultation with the Senate, the Governor, my House colleagues, some environmental leaders, Duke Energy and others. My goal is to have draft legislation this week. The legislation will require compromise on the part of all interested parties — the legislature, the governor, Duke Energy, environmental activists and those potentially affected by the coal ash buried near their property. Consultation with interested parties this week will be critical in determining whether compromise is possible. My bottom line is that we’ve got to get the coal ash basins cleaned up, and I don’t intend to put forward a bill that doesn’t move us toward accomplishing that goal