Gov. Pat McCrory refused Tuesday to sign the state’s tough new law on coal ash ponds, in part, because it sets up an oversight commission that he believes is not accountable and erodes his authority to execute laws.

“There are so many commissions being formed with total independence, and if those commissions start doing bad jobs, then there’s no one in control,” McCrory said last week on NC Spin, a political talk show syndicated across the state.

But the thing is, the coal ash commission was designed to have great responsibility and power.

The new law gives the commission full authority to close coal ash ponds, enforce cleanup schedules and a host of other powers that affect communities across the state.

And the concept of an independent commission in North Carolina is nothing new.

It’s just new to McCrory.

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McCrory’s surprise move is the most recent in a series of detours that have plagued coal ash legislation since a spill at Duke Energy’s 

retired Dan River Steam Station near Eden dumped up to 39,000 tons of coal ash into the river.

In April, McCrory called for strict legislation and a plan for closing the 33 coal ash ponds owned by Duke Energy around the state.

A coal ash bill was the first one filed in the 2014 General Assembly session.

McCrory, who worked at Duke Energy for 29 years, has opposed the independent commission throughout the drafting process for the legislation.

Bob Stephens, general counsel for the governor, told the N.C. House environment committee in July that the commission violates the separation of the legislative and executive branches of government.

The majority of the nine-member commission will be appointed by the General Assembly. Three members will be appointed by the governor.

Members will be chosen based on expertise in such areas as waste management, conservation and

engineering.

After Stephens spoke, bill sponsor Rep. Mike Hager (R-Burke) told Stephens that he “respectfully” disagreed with him and that the legislature makes appointments like this “all the time.”

And Hager has decades of North Carolina legal history to back him up.

But that seemed irrelevant in August when the legislature adjourned without passing a bill.

On Aug. 20, however, the House and the Senate reached a compromise and passed a bill that would require Duke Energy to dig up or cap its coal ash ponds by 2029.

A factor that cemented the compromise remained the sticking point for McCrory — the coal ash commission.

When McCrory declined to sign the bill, he said the commission would operate without supervision once it begins regulating and enforcing the new law.

McCrory feels so strongly that the bill violates his power and the state constitution, that he plans to ask the state Supreme Court for an advisory opinion.

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If the governor is fortunate enough to get an advisory ruling and one in his favor, it stands as a very strong statement despite the fact that it didn’t come from a courtroom.

“Although it’s not quite the same as an opinion in a contested case, you can feel pretty darned comfortable in relying on that,” said Michael Crowell, a professor at the UNC School of Government.

An advisory opinion can give McCrory’s argument legitimacy.

If the court decides not to consider his request, he would have to begin a long and uncertain trial process.

“If the court were to issue an advisory opinion, obviously that would be a quicker process,” Crowell said.

Beyond that, Crowell and earlier scholars have shown that McCrory’s issue with an independent commission is nothing novel, the concept is typically supported by cases throughout the state’s history.

North Carolina state officials have wrangled for decades over the General Assembly’s authority to appoint boards and commissions.

At issue: Does the General Assembly have the right to appoint officials who do not report to the governor when they administer laws passed by the legislature?

In the early 1980s, Gov. Jim Hunt clashed with the legislature over the General Assembly’s influence on the Environmental Management Commission.

At the time, the General Assembly was appointing legislators to the board, creating a direct pipeline from the General Assembly to fellow legislators on an administrative group that was designed to be independent.

The Supreme Court ruled in January 1982 that the legislature is not entitled to appoint its members to the commission.

Now, only private citizens can belong to boards.

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Some wonder if McCrory, who declined to be interviewed for this article, is taking aim at the broader concept of independent commissions as he prepares to ask the state Supreme Court for an opinion.

He said Tuesday in a statement that the coal ash commission is just “another unchecked, non-judicial commission that reports to no one, has no accountability and adds another level of unneeded bureaucracy.”

McCrory’s issue may also be that the General Assembly is stacking boards with more legislative appointments, making fewer available to him.

But Senate President Pro Tem Phil Berger, a Rockingham County Republican, thinks McCrory’s true motive has more to do with Duke Energy.

“The governor’s primary concern appears to be a desire to control the coal ash commission and avoid an independent barrier between his administration and former employer,” Berger said in a statement.

Contact Richard M. Barron at (336) 373-7371 and follow @BarronBizNR on Twitter.  

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