McCrory shuts down coal ash commission

Gov. Pat McCrory has shut down the Coal Ash Management Commission, which lawmakers had set up to oversee the cleanup of toxic coal ash ponds across the state. For the time being, that work will be oversee by the Division of Environmental Quality.

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Mark Binker
RALEIGH, N.C. — Gov. Pat McCrory has shut down the Coal Ash Management Commission, a group set up by lawmakers to oversee the cleanup of unlined coal ash pits across the state.

For the time being, that work will shift to the Division of Environmental Quality, an agency overseen directly by McCrory. The governor had challenged the creation of the coal ash commission in court because it intruded upon his executive authority.

"The North Carolina Supreme Court made it clear that the commission is an unconstitutional body that cannot take any action," said Mike Rusher, a spokesman for DEQ. "However, there will be absolutely no change in the Department of Environmental Quality's implementation of the Coal Ash Management Act, which is the first comprehensive law in the nation to deal with coal ash."

In January, the state Supreme Court ruled that creating a commission controlled by appointments from top lawmakers to carry out executive branch functions violated constitutional separation of powers rules.

Lawmakers had been planning on fixing the commission by changing how members are appointed. McCrory, however, has decided to do away with the commission entirely.

In a letter dated March 11, McCrory General Counsel Robert Stephens informs Commission Chairman Michael Jacobs that his group has been disbanded.

"This letter is to advise you that as a result of the Supreme Court's decision, the Commission no longer exists as a legal entity and does not have any legal authority to take any further action," Stephens wrote.

This action surprised lawmakers who said they set up the commission to oversee coal ash removal because of possible conflicts of interest between the McCrory administration and Duke Energy, the power company that generated the bulk of the ash that exists in North Carolina.

"I have no more confidence now. In fact, I've got less confidence in DEQ's ability to manage this issue," said Rep. Chuck McGrady, R-Henderson.

Conflict over control

Coal ash is the material left over after coal is burned for fuel, mainly to generate electricity. For decades, the issue was a focus for the environmental policy community but largely ignored by lawmakers and the general public in North Carolina.

That changed on Feb. 2, 2014, when a coal ash pond in Rockingham County spilled tons of the toxin-laced material into the Dan River. Since then, the cleanup of the Dan River pond and similar coal ash pits across the state has been the focus of intense public scrutiny.

In mid-2014, lawmakers laid down the rules for coal ash cleanup and created the Coal Ash Management Commission to oversee the work. At the time, lawmakers said they were concerned that what was then the Department of Environment and Natural Resources, now DEQ, had failed to prevent the spill or push for the cleanup and containment of coal ash ponds across the state. They also pointed to McCrory's more than two decades as a Duke employee as a potential conflict of interest.

McCrory argued that DEQ was the right agency to oversee the work and that lawmakers were unconstitutionally taking power away from the executive branch, which led to the Supreme Court ruling.

As recently as January, the Coal Ash Management Commission reported to lawmakers that it was continuing to work on the issue while waiting for the legal tussle to be resolved.

Jacobs, the commission chairman, declined Thursday to speak about the McCrory administration's action to dissolve the commission.

McGrady said he and other lawmakers were informed of the governor's action by a memo from legislative staff that was drafted after commission executive director Natalie Birdwell informed them she had resigned.

"The governor is taking unilateral action," McGrady said, adding that he didn't know how lawmakers would respond.


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