Berger: McCrory Administration Too Close With Duke Energy

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The News and Record has an article today talking about Governor McCrory's decision not to sign the recent coal ash clean up bill passed by the General Assembly. McCrory, a former Duke Energy employee of 29 years, has opposed the creation of an independent coal ash commission, which would be appointed by the legislature. Governor McCrory claims the commission is unconstitutional, but Senate leader Phil Berger thinks it has more to do with McCrory's close ties with Duke Energy. From their article,

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.

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.

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