A North Carolina environmental board whose recent membership alteration by the General Assembly is being challenged by Gov. Roy Cooper can cancel its own lawsuit over pollution limits while the governor’s broader litigation about several state commissions continues, judges ruled Friday.
The decision from a three-judge panel — a setback for Cooper — dissolves last month’s order from a single judge to temporarily block the Environmental Management Commission from dismissing its complaint against the Rules Review Commission. The rules panel had blocked regulations from the environmental panel on new numerical standards in surface waters of a synthetic industrial chemical because it said some information it received was inadequate.
The environmental panel is one of seven boards and commissions that the Democratic governor sued GOP legislative leaders over in October. Cooper alleges that lawmakers violated the state constitution with laws in 2023 that contain board memberships that weaken his control over them. On six of the boards, including the environmental panel, the governor no longer gets to fill a majority of positions. Republicans have said the changes bring more diversity to state panels.
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The judges heard three hours of arguments Friday from attorneys for Cooper and GOP legislative leaders, mostly pitching why their clients should come out victorious in Cooper’s full lawsuit. The judges didn’t immediately rule on those competing judgment requests, but asked the parties to send draft orders by Feb. 23. Any ruling could be appealed to state courts. The lawsuit is one of many filed by Cooper against GOP legislative leaders over the balance of power in the two branches of government since 2016.
The panel of Superior Court Judges John Dunlow, Paul Holcombe and Dawn Layton in November blocked changes to three challenged boards while Cooper’s lawsuit played out. But the Environmental Management Commission was not part of their injunction.
That opened the door to a reconstituted commission, with a new chairman and fewer Cooper allies as members, to vote in January to back out of the lawsuit that was filed when Cooper appointees held a majority of commission positions. Cooper’s attorneys argued that the withdraw provided evidence that changes to the 15-member body prevented him from carrying out laws in line with his policy preferences.
Dunlow didn’t give a reason in court Friday why the three judges denied Cooper’s request for a longer injunction preventing the environmental commission from dismissing its lawsuit. The body is also one of three challenged commissions where membership now also includes appointees of the insurance or agriculture commissioners, who like the governor are executive branch officers.
Cooper lawyer Jim Phillips argued that the state constitution “charges the governor alone with the responsibility to ensure that our laws are faithfully executed.” He again emphasized state Supreme Court rulings from the 1980s and 2010s as confirmation that GOP legislators went too far in membership changes that took away Cooper’s appointments and gave them to the General Assembly, its leaders or other statewide elected officials.
But Matthew Tilley, a lawyer for House Speaker Tim Moore and Senate leader Phil Berger, said the governor has “never been alone in the exercise of executive power in our state.” Tilley also suggested the distribution of duties to other executive branch officers is a General Assembly policy preference that isn’t subject to judicial review.
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