Senate bill would strip governor of some appointment powers, give it to legislature

A new bill would strip the governor of some of his appointment powers and transfer them to the state legislature, potentially teeing up another constitutional showdown reminiscent of the 2016 court case McCrory v. Berger.

Senate Bill 512 would change the political complexion of nine key boards and commissions. Sen. Warren Daniel, a Republican and co-sponsor of the measure, claimed it would “bring much needed balance to unelected boards that have significant impact on our lives.”

The most significant changes would occur at the Utilities Commission, in charge of regulating investor-owned electric utilities, like Duke Energy, and private water companies, such as Aqua North Carolina. It also has the authority to approve or disapprove swine gas projects as they pertain to energy.

The commission’s seven members are currently appointed by the governor. The bill calls for an expansion of the commission to nine members:

• four would be gubernatorial appointments
• two each made by the House Speaker and Senate Pro Temp
• one would be appointed by the state treasurer

The Utilities Commission would also move from the Department of Commerce to the State Treasurer’s Office.

Current appointees on this commission and all boards would serve out their terms.

The bill would also alter three environmentally focused commissions: Environmental Management  Coastal Resources and Wildlife Resources.

The EMC is especially important because it makes environmental rules — subject to public comments and hearings — for state regulators to enforce. Arguably, there is already a “diversity of opinions” as Daniel called for, on the EMC. Of the 15 members, six are appointed by state lawmakers. There is one vacancy.

The bill would not expand the number of General Assembly appointments, but it would take two from the governor and give them to the Agriculture Commissioner, an elected position held by Steve Troxler, a Republican, since 2005.

Troxler has often taken an anti-regulatory stance toward environmental rules. He has added his office’s muscle to opposition to the federal hog nuisance lawsuits and ensured that the law allows most enormous poultry farms to operate with out a permit — and in secret.

Other appointed bodies that would be affected include the Board of Transportation, Economic Investment Committee, the UNC Health Care Board of Directors, Commission for Public Health and the Railroad Board of Directors.

Several Democrats, including Sens. Mujtaba Mohammed and Natasha Marcus of Mecklenberg County, and Sens. Rachel Hunt and Lisa Grafstein of Wake County, were concerned the bill consolidated the legislature’s appointment powers, at risk of running afoul of the state constitution.

Daniel dismissed their concerns . “If we wanted to make a power grab we would make all the appointments,” Daniel said at a Senate Judiciary Committee meeting today.

He said bill sponsors “believe it complies with existing case law” in McCrory v. Berger, or contains language “the courts have not yet considered.”

In that case then-Gov. Pat McCrory, a Republican, sued the GOP-led legislature over their appointments to several commissions: oil and gas, mining, and coal ash management. McCrory argued that the General Assembly’s appointments to those commissions violated the Separation of Powers clause in the state constitution. The NC Court of Appeals ruled in favor of McCrory. (Judge Paul Newby, now Chief Justice of the state Supreme Court, dissented in part.)

Grafstein said the proposed appointment process does not add balance, as the bill sponsors contend. “What we have come to learn from the UNC Board of Governors appointments” — a predominantly white, male group whose membership is tightly controlled by Republican state lawmakers — “is that some of us are more equal than others.”

Grafstein said the bill’s subtext is that it places more power in the hands of Republican lawmakers. “The reality is we’re talking one-party control, not just of the legislature but these boards.”

In addition to Daniel, primary bill sponsors are Sens. Bill Rabon and Phil Berger, who as Senate leader, was among the defendants in the previous court case.

A Senate judiciary committee today gave the bill a favorable report; it now goes to the Rules committee.