Coal ash veto override dammed up

Posted June 8, 2016

Coal ash is loaded into a truck so it can be carried away from a Duke Energy power plant and be dumped in a clay mine near Moncure.

— Senate leaders have not called for an expected vote to pass this year's coal ash management bill by overriding Gov. Pat McCrory's veto, and it appears that some sort of behind-the-scenes negotiations will push the vote off for at least another week.

That likely delay comes as Duke Energy's top executive met with top Senate leaders Wednesday, and at least one lawmaker involved in crafting the bill said his colleagues were working on a compromise with the Governor's Office.

The bill, Senate Bill 71, arrived back at the legislature Monday. Senate and House leaders had signaled they were poised to hold an override vote Wednesday. The measure passed in the Senate 46-1 and the House 84-25. Over the past six years they have held the majority, Republicans legislators have not hesitated to push on with a veto override when they wielded such convincing, bipartisan majorities on an issue.

Because the bill was first drafted in the Senate, any override effort would have to start in that chamber.

"It won't be today," Senate President Pro Tem Phil Berger said with a smile when asked about a potential override vote after his chamber had gaveled out of session Wednesday.

Berger refused to say why he wasn't calling for a vote, adding only that a Thursday vote wasn't likely either. Pushed for an answer, he finally said, "We're just not going to do it yet."

Sen. Tom Apodaca, R-Henderson, the Senate Rules Committee chairman and his chamber's lead author on coal ash legislation, said, "the timing wasn't right" for an override vote, but he gave no insight into the delay.

Lawmakers passed the state's Coal Ash Management Act in response to a Feb. 2, 2014, spill that sent tons of toxin-laced ash spewing into the Dan River. The ash is what's left when coal is burned to generate electricity, and there are 33 unlined coal ash ponds throughout the state. Those ponds are now all owned by Duke, which is both one of the state's largest and most politically influential employers and responsible for the cleanup of the pollution.

Duke has largely supported Senate Bill 71 and publicly chastised McCrory for the veto. Environmental groups have offered mixed opinions on the measure, with some saying it is a sop to the company that could eventually allow it to use cheaper but less certain cleanup methods on the coal ash pits.

In addition to setting up rules for the cleanup and handling of coal ash, the General Assembly in 2014 created a Coal Ash Management Commission to oversee the cleanup. That commission was set up in part because lawmakers were not pleased with the job state environmental officials had done addressing the spill and related cases. They were also leery because McCrory was a long-time Duke employee before becoming governor, and they wanted closer oversight of his work on the matter.

McCrory sued to invalidate the commission, saying it illegally took his authority to carry out executive branch functions, in part because legislative appointments dominated the commission. The state Supreme Court sided with him. Senate Bill 71 was an attempt to address that court ruling, giving McCrory the bulk of appointments on the new commission but requiring those appointees to be confirmed by the legislature.

That confirmation provision was part of what drew another McCrory veto. The governor also insists that the bill would delay cleanup of coal ash ponds across the state and delay the provision of permanent water supplies to homeowners whose wells have been fouled by seeping coal ash contamination. The bill's authors insist it creates the first legal requirement for Duke to supply water to affected homeowners and ensures a methodical cleanup.

"I'm not picking any fight with the General Assembly," McCrory said Tuesday. "What I'm doing is exposing a bill that's bad for the environment and bad for our constitutional rule of law. One reason to veto a bill is to make sure the public is aware of exactly what's in a bill."

McCrory also said that the legislation ignored the Supreme Court's ruling on the commission and has pledged to sue again if lawmakers override his veto.

Rep. Chuck McGrady, R-Henderson, the House's lead author on coal ash matters and a strident defender of Senate Bill 71, said Wednesday he had been told that senators were talking with the governor about a compromise of some sort.

"I believe there are discussions going on with the governor," McGrady said, adding that he was not part of those conversations.

It's unclear why lawmakers would negotiate with the governor given their ability to override the veto and the fact they have not shied away from litigation over any number of measures, ranging form voting districts to social issues such as abortion. Several different lobbyists who work in the environmental policy arena said they had been told lawmakers were concerned they would be on the losing side again should McCrory file another lawsuit. Such a suit could have wide-ranging repercussions because there are many state boards and commissions with oversight over executive branch functions stacked with legislative appointments, similar to how the Coal Ash Management Commission was designed.

Asked about McGrady's comments, Apodaca said that he was not personally involved in any discussions with McCrory about the bill, but he would not say whether other senators or their staff were. A spokesman for the Governor's Office could not immediately confirm whether or not discussions were or were not taking place.

However, Senate leaders were certainly talking Wednesday to Duke. Chief Executive Lynn Good spent roughly 20 minutes speaking to Berger, R-Rockingham, and Apodaca Wednesday afternoon, along with Kathy Hawkins, a lobbyist of the company, in Berger's office.

When a WRAL News reporter approached Good to ask if she was working on something regarding the coal ash bill, Hawkins stepped in, saying, "No, thank you," and quickly ushered Good away.

Asked about the meeting with Good, Apodaca said that it was, "Not about that bill but about the future of coal ash in the state and how we're going to deal with it." Asked if that wasn't the very subject that Senate Bill 71 dealt with and suggested that the conversation at least must of tangentially touched on the bill, Apodaca said he couldn't say more.


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