Cooper wins court ruling against environmental appointment changes

State Senate Leader Phil Berger, Gov. Roy Cooper, and House Speaker Tim Moore

Listen to this story (12 minutes)

  • Gov. Roy Cooper secured a court order Thursday blocking recent changes to membership of the state Environmental Management Commission.
  • After a new state law replaced two Cooper appointees with appointees from the state agriculture commissioner, the EMC voted Thursday to drop a lawsuit against the state Rules Review Commission.
  • Cooper argued before Superior Court Judge Rebecca Holt that the EMC's decision proved that lawmakers had violated the state constitution by taking away his authority to control a majority of EMC appointments.

Lawyers for Gov. Roy Cooper returned to court Thursday afternoon to fight recent changes in appointments to North Carolina’s Environmental Management Commission. A Superior Court judge granted Cooper a temporary restraining order blocking the EMC’S most recent actions.

Judge Rebecca Holt scheduled a hearing Jan. 18 on Cooper’s request for a longer-lasting injunction.

Three signed orders from Holt appeared on the Wake County courts’ website shortly after 2 p.m. Friday. One granted Cooper’s motion to shorten the notice for Thursday’s hearing and scheduled the hearing. A second granted Cooper’s motion to supplement his original lawsuit. The third spelled out the terms of the restraining order.

The case had been handled by a three-judge panel because of the basis of Cooper’s constitutional challenge against a state appointments law. But the governor’s latest court arguments suggested that he was challenging the application of that law. State law permits a single judge to consider “as-applied” constitutional challenges. Cooper’s lawyers filed a motion to stay further proceedings before the three-judge panel as he pursues his “as-applied” complaint.

The governor opposes the EMC’s decision to drop a lawsuit against the Rules Review Commission, a group appointed by the General Assembly that reviews new government agency rules.

Within hours of the EMC’s vote to dismiss the RRC lawsuit, Cooper filed a motion for a temporary restraining order and preliminary injunction.

Cooper’s lawyers argued that the EMC never would have dropped the suit if the governor had continued to maintain a majority of appointments to the environmental group.

Thursday’s court filings marked the latest developments in a case dubbed Cooper v. Berger. On Nov. 1, a three-judge panel granted Cooper an injunction against parts of Senate Bill 512.  That bill, enacted into law last year over Cooper’s veto, changed the way members are appointed to various state government boards and commissions.

The Nov. 1 court order blocked proposed changes to the state’s Economic Investment Committee, Commission for Public Health, and Board of Transportation. Judges refused to block changes to the EMC and Coastal Resources Commission.

Lawyers representing state legislative leaders argued to Holt Thursday that the three-judge panel’s November ruling should have prompted her to rule against the governor’s latest motion. Holt disagreed.

Cooper’s new court filing explained why the governor renewed his request for action against EMC changes.

The state Supreme Court “has consistently reaffirmed that in our constitutional system, the duty to ‘take care that the laws be faithfully executed’ is expressly assigned to the Governor,” Cooper’s lawyers wrote. “In order to fulfill that constitutional obligation, the Governor must retain sufficient control over boards, commissions, and committees that perform executive functions. The Governor lacks sufficient control when he is unable to appoint, supervise, and remove a working majority of members to such boards, commissions, and committees.”

“Control of a working majority of the EMC has been reallocated to Commissioners who do not share the views and priorities of the Governor concerning execution of North Carolina’s environmental laws, as evidenced by the EMC’s recent vote purporting to dismiss critical litigation protecting the EMC’s rulemaking authority,” Cooper’s motion added.

“To prevent irreparable harm to the Governor’s constitutional obligation to ensure faithful execution of the law, and to preserve the status quo of the subject matter involved until a trial can be had on the merits, a temporary restraining order and preliminary injunction preventing the EMC from dismissing its lawsuit against the North Carolina Rules Review Commission is necessary,” the governor’s lawyers argued.

Before SB 512 took effect, Cooper had authority to appoint nine members of the 15-member EMC. Legislators appointed the other six members.

The challenged law shifted two of Cooper’s nine appointments to the state agriculture commissioner. Cooper is a Democrat. Ag Commissioner Steve Troxler and legislative leaders are Republicans.

Troxler’s appointees have joined the legislative appointees to “form a working majority on the EMC that has taken actions inconsistent with the Governor’s policy views and priorities with respect to how the EMC should execute the laws within its jurisdiction,”  according to Cooper’s motion.

That includes the commission’s decision to replace Robin Smith, a Cooper appointee, with John “JD” Solomon, a legislative appointee, as the group’s chair.

“Commissioner Solomon does not share the Governor’s policy views and priorities with respect to how the EMC should execute the laws that are within the jurisdiction of the EMC,” Cooper’s lawyers argued. “For example, Commissioner Solomon personally disagrees with the Governor’s policy views and priorities reflected in the EMC’s Proposed 1,4-Dioxane Amendments and the related Complaint in EMC vs. RRC.”

The proposed 1,4-Dioxane Amendments prompted the legal dispute between the environmental and rules review groups.

“[T]he Governor is likely to succeed in showing that he has in fact lost control of the EMC, and the EMC has exercised its control inconsistent with the Governor’s views and priorities with respect to ensuring faithful execution of the laws under the jurisdiction of the EMC,” the governor’s lawyers argued.

Legislative leaders filed paperwork in November asking the Superior Court panel to dismiss Cooper’s lawsuit.

The court should “dismiss Plaintiffs claims (a) due to lack of subject matter jurisdiction and (b) on the grounds that the Complaint fails to state claim upon which relief may be granted,” according to lawmakers’ motion.

Cooper’s “claims present nonjusticiable political questions,” and he “lacks standing” to challenge appointment changes “that will not take effect until after his term as Governor has ended.”

The Nov.1 injunction followed a hearing in Raleigh before the three-judge panel.

“Each of these boards is housed in an executive branch agency that is controlled by the governor,” argued Jim Phillips, an attorney representing Cooper. “Each of these boards has final executive decision-making authority. They make rules. They enact policies. They levy fines, They issue permits. In short, they are charged with executing and enforcing the laws of the state of North Carolina.”

“The General Assembly’s restructuring of these boards is unconstitutional,” Phillips added.

“This is our democracy that we’re talking about,” Phillips said. “This is about the checks and balances that keep our branches of government in their lanes.”

“It is the General Assembly’s job to set the policy of the state, to organize state government, and to place in that organization of government checks and mechanisms that ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people,” responded Matthew Tilley, the lawyer representing GOP legislative leaders.

Tilley rejected Cooper’s claim that previous court battles between the executive and legislative branches clearly favored the governor.

“There is no bright-line rule for when a separation-of-powers violation occurs in the appointments to boards and commissions,” he said. “They require a case-by-case analysis.”

Superior Court Judges John Dunlow, Paul Holcombe, and Dawn Layton serve as the three-judge panel overseeing Cooper v Berger. Dunlow and Holcombe are Republicans. Layton is a Democrat. Dunlow serves as resident Superior Court judge in Granville County. Holcombe’s judicial district covers Johnston County. Layton’s district covers Anson, Richmond, and Scotland counties.

Cooper filed a 55-page complaint on Oct. 10 in Wake County Superior Court. His suit targeted state Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Moore, as leaders of the General Assembly.

The suit reached the court slightly more than three hours after the legislature approved SB 512. A 72-44 vote in the state House completed the override of Cooper’s veto of the measure.

SB 512 changed the appointment structure for the state Economic Investment Committee, Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, North Carolina Railroad Board of Directors, UNC Health Care Board of Directors, Utilities Commission, UNC Board of Governors, and UNC Chapel Hill and NC State University boards of trustees.

Cooper objected to changes taking away his appointment powers in that law, along with a provision in House Bill 488 that reorganized the State Building Council and created the Residential Code Council.

“This law is a blatantly unconstitutional legislative power grab,” Cooper said in a news release announcing the lawsuit. “Over the years, the North Carolina Supreme Court has repeatedly held in bipartisan decisions that the legislature cannot seize executive power like this no matter what political parties control which offices. The efforts of Republican legislators to destroy the checks and balances in our constitution are bad for people and bad for our democracy.”  

Cooper originally asked for an injunction blocking portions of the two challenged laws dealing with the Economic Investment Committee, the Environmental Management Commission, Commission for Public Health, Board of Transportation, Coastal Resources Commission, Wildlife Resources Commission, and Residential Code Council.

Changes to the wildlife and residential code groups are scheduled to take effect in 2025. Phillips agreed on Nov. 1 to set aside the request to block those changes now. Cooper could renew his pursuit of an injunction again if the rest of the case remains unresolved in 14 months.

Phillips accused state lawmakers of approving laws that fly in the face of state Supreme Court precedents from 1982, 2016, and 2018.

“The General Assembly knows that these statutes are unconstitutional,” Phillips argued Wednesday. “Speaker Moore has said so — said as much. ‘We think those cases were wrongly decided, and we want to give it another shot.’”

“It is the governor alone, not the General Assembly, not the Medical Society, not the Council of State, who is given the authority and the duty to ensure that the laws are faithfully executed.”

Phillips and Tilley offered contrasting views of the separation of powers.

“The General Assembly, and not the executive, is what is typically understood to be the primary policymaking branch of government,” Tilley said. “One way that it makes policy is through structure of boards and commissions.”

“To the extent that the governor has the ability to set executive policy, it is within the confines and the boundaries set by the General Assembly.”

Editor’s note; This article has been updated to include information about Cooper’s request to stay further proceedings before a three-judge panel. The article also includes three signed orders from Holt.