Gov. Roy Cooper has spent much of his time in office complaining about “power grabs” from Republican leaders of the General Assembly.
Some might attach the same label to the Democratic governor’s recent actions regarding North Carolina’s Environmental Management Commission.
The story starts in August. That’s when Cooper vetoed Senate Bill 512. It shifted appointment powers for various state boards and commissions. In most cases, lawmakers took appointments away from Cooper.
Republican lawmakers voted to override the veto in October. The matter could have ended at that point.
Instead Cooper filed a lawsuit. He invited the judicial branch of state government to wade into a political fight between the executive and legislative branches.
The governor argued that disputed portions of SB 512 violated the state’s constitution under all circumstances. In other words, his lawsuit challenged the law on its face. Lawyers label that type of claim a facial challenge. State law requires a three-judge Superior Court panel to consider those cases.
A unanimous bipartisan three-judge group delivered Cooper a partial victory on Nov. 1. The judges blocked appointment changes to three of five boards Cooper had targeted.
The judges did not apply their injunction to the EMC. Cooper could continue to challenge EMC appointment changes as his lawsuit moved forward, but duly selected representatives of the judicial branch would not block those changes before a trial.
Given that ruling, SB 512 took effect for the environmental group. Two of Cooper’s nine appointments to the 15-member board shifted to Agriculture Commissioner Steve Troxler. Cooper still had seven appointees, compared to six for state legislators and Troxler’s two. Even with the changes, executive branch appointees outnumbered those of the General Assembly.
The story could have ended there, at least until Cooper’s lawsuit headed to trial.
But the governor would not accept that outcome.
The new EMC voted on Jan. 11 to drop a lawsuit against the Rules Review Commission, a body appointed entirely by legislators. The two commissions had squabbled over rules environmental regulators proposed for a chemical called 1,4-Dioxane.
On the same day as the EMC vote, Cooper’s lawyers headed back to court. They supplemented their lawsuit with complaints about the vote’s impact.
“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 lawyers wrote.
“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 added.
Rather than returning to the three-judge panel, Cooper’s lawyers sought a hearing the same afternoon before a single Wake County judge. The governor’s team argued that one judge was appropriate since he now challenged SB 512 as it was applied to the EMC. In other words, his case was no longer a facial challenge.
Despite objections from legislative lawyers, Judge Rebecca Holt granted Cooper’s request. Within hours of the EMC’s action, the governor successfully enlisted one member of the judicial branch to block a state board vote that bothered him.
All Jan. 11 activity took place outside of the public spotlight. Court orders shortening the public notice for Holt’s hearing — and scheduling the hearing itself — appeared publicly the following day. There was nothing typical about the way courtroom action played out.
But more than just the Jan. 11 timeline raises concerns.
Most of us expect members of state boards to base their decisions on facts in front of them, along with expertise they bring to the table. Cooper appears to expect his appointees to vote the way that he dictates.
Why else would he argue that a vote to drop a lawsuit demonstrates that “he has in fact lost control of the EMC,” as his lawyers argued, and that “the EMC has exercised its control inconsistent with the Governor’s views and priorities”?
Cooper’s legal team worked actively to undermine a three-judge panel’s decision about EMC appointment changes. His lawyers appeared to use his position as the state’s chief executive to short-circuit the normal schedule of deliberate judicial action. Cooper’s representatives argued that the governor should have the authority to dictate outcomes of EMC votes.
One might describe this course of action as a power grab.
Mitch Kokai is senior political analyst for the John Locke Foundation.