Elections amendment allows Republicans to take immediate control of NC environment board

An amendment to a bill about elections would hasten changes to North Carolina’s Environmental Management Commission, giving Republican appointees a majority as the commission begins a number of consequential rule-making decisions.

The amendment to Senate Bill 749 would allow Agriculture Commissioner Steve Troxler to immediately appoint two members to the commission, which oversees environmental rules in the state. That would replace a pair of appointees from Gov. Roy Cooper, giving Cooper six appointees, the Republican-led General Assembly six appointees and Troxler two. Troxler, a Republican, was last reelected in 2020.

Replacing the two members immediately would mean Republican appointees would hold the majority as the commission considers rewritten rules overseeing wetlands protections and conducts the second cycle of a General Assembly mandated review of all of the state’s environmental rules.

They would also control the commission as it embarks on nutrient management strategies for Falls and Jordan lakes. Nutrients like nitrogen and phosphorus are harmful to lakes because they encourage the growth of algae, which in turn takes oxygen from the water.

“This is yet another attempt by the legislative Republicans to consolidate more power for themselves, in this case hurting the state’s efforts to protect and preserve clean air and water for North Carolinians,” Jordan Monaghan, a Cooper spokesman, wrote in an email.

Rep. Destin Hall, the Caldwell County Republican who sponsored the amendment expediting the change, told The News & Observer it was meant to clear up some confusion about when the two appointments that were swapped in Senate Bill 512 became effective.

“Did the folks who are appointed before it became law, did they just continue on until the next round? That wasn’t the intent in the prior bill but it needed to be clarified,” Hall said.

When Hall introduced the amendment Tuesday during debate on the House floor, he discussed changes to the University of North Carolina Chapel Hill and N.C. State University boards of trustees but did not mention the change to the Environmental Management Commission. The provision passed via a voice vote.

Other provisions in Senate Bill 749 overhaul state and local election boards, stripping all appointments from the governor. The new boards would have an even bipartisan split, raising the specter of potential deadlocks, an eventuality that is left with almost no remedies in the bill.

Senate Bill 749 passed the House Thursday evening by a vote of 62 to 44. The Senate followed up Friday morning, approving the conference report by a vote of 26 to 17.

The bill will now head to Cooper to either sign, veto or allow it to become law without his signature.

Cooper vetoed Senate Bill 512, which took appointment power away from him and gave it to legislative leaders on a number of state boards and commissions ranging from the Board of Transportation to the Environmental Management Commission.

It is widely expected that Republicans will be able to override that, as they hold veto-proof majorities by one member in both the House and the Senate.

Senate Bill 512 turned appointment power for the two seats from Cooper to Troxler, but Cooper appointed Donna Davis and Pat Harris earlier this summer, before the bill became law. Rather than have Davis and Harris serve out four-year terms and keep Cooper appointments in the majority, Republican leadership decided to amend Senate Bill 749 to make the changes effective immediately.

Advocates who closely watch the Environmental Management Commission believe the changes violate the current interpretation of separation of powers that was decided in McCrory v. Berger. In that case, the N.C. Supreme Court found it unconstitutional to have the General Assembly appoint a majority of the members of a board that resides under the governor’s control.

In the new Environmental Management Commission makeup, the General Assembly would still appoint a minority of the board, but the governor’s seven appointments won’t be enough to make rules by themselves.

Grady McCallie, the NC Conservation Network’s policy director, told The N&O he and other advocates will continue to argue before the board, even if those changes are now coming earlier than expected.

“It’s clear that this is a power grab. It undermines separation of powers, it undermines having an executive branch run by a governor to have the legislature do this. This amendment doesn’t really change that. It speeds up the date at which we may confront the implications of that, but it’s just a raw power grab,” McCallie said.

During debate late Thursday evening, Rep. Pricey Harrison, a Guilford County Democrat, said lawmakers were told that existing appointees would be allowed to serve out their terms before the new appointment powers would become effective.

If Senate Bill 749 becomes law, it would also require the newly constituted Environmental Management Commission to elect a new chair. That new chair could replace Robin Smith, an environmental lawyer and one-time assistant secretary of the agency that preceded DEQ.

The two seats that Troxler would appoint are the agricultural expert seat currently held by Pat Harris and the at-large seat held by Donna Davis. Both served full four-year terms on the commission and were reappointed by Cooper this summer.

“The commissioners who are in those seats have been very fair and thoughtful,” McCallie said.

This story was produced with financial support from the Hartfield Foundation and the 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.