Unconstitutional legislative commission prioritizes polluters’ interests over the people of North Carolina, says new court filing

CHAPEL HILL, N.C.— On behalf of several community groups from across the state, the Southern Environmental Law Center late yesterday filed an amicus brief in Wake County Superior Court that supports Governor Cooper’s challenge to the North Carolina Rules Review Commission created by the state legislature because it violates the state constitution’s separation of powers.

“The Rules Review Commission ignores and violates North Carolina’s constitution, and the interests and well-being of the people of North Carolina,” said Kym Meyer, senior attorney at SELC, which represents the community groups in the filing. “This unconstitutional commission places the interests of politically powerful polluters over the interests and health of the people of North Carolina in violation of the separation of powers.”

The North Carolina Constitution states that the executive branch has the exclusive power to promulgate and implement administrative regulations. Yet, the North Carolina General Assembly created the Rules Review Commission, appoints all 10 of its members, and gave the commission authority to review and approve regulations before they can go into effect. This commission amounts to an impermissible and unconstitutional legislative veto of executive branch administrative regulations.

The legislature’s commission has blocked rules vital to North Carolina communities’ well-being that the Cooper administration is attempting to implement, including rules that would protect our drinking water sources from toxic 1,4 dioxane pollution, and protect wetlands critical to fisheries, water quality, and flood and storm protection. Based on this track record, groups are also concerned about rules under development that would protect drinking water sources from harmful E. coli; join regional U.S. efforts, known as the Regional Greenhouse Gas Initiative, to reduce the heat-trapping pollution that leads to harmful climate change; and adopt the Advanced Clean Trucks Rule to reduce pollution in the air that North Carolina residents breathe.

“It is critical that safeguards that will protect North Carolinian citizens and taxpayers from high levels of pollution are effective and maintained. Decreasing air pollution will reduce asthma and other respiratory diseases that affect vulnerable children and the senior population. Reducing diesel truck emissions will also help address climate change,” said Omega Wilson of the West End Revitalization Association, an environmental justice organization that has served residents, homeowners, and landowners of five African American and Native American communities in Alamance County and Orange County since 1994.

SELC filed the challenge on behalf of community nonprofits advocating for these proposed rules: Cape Fear River Watch, Carolina Wetlands Association, CleanAIRE NC, Democracy Green, Haw River Assembly, MountainTrue, North Carolina Black Alliance, North Carolina Coastal Federation, Sound Rivers, and West End Revitalization Association.

The case is currently pending before a three-judge panel of state superior court judges.

Other executive boards and commissions in North Carolina are appointed by both the governor and the legislature, with the governor selecting most members. The constitutional necessity of such composition was confirmed in the McCrory v. Berger case involving the Coal Ash Management Commission.