August 1, 2018. The General Assembly drafted six proposed amendments to the N.C. Constitution that will be on the November ballot for voter approval (or not). Two of the proposed amendments could affect environmental and natural resource policy.
Appointments to boards and commissions. House Bill 913 (short title: Bipartisan Ethics and Elections Enforcement) proposes to amend the Constitution to give the General Assembly more power to appoint members to state boards and commissions. Notwithstanding the bill title, the amendment could affect the makeup of every state board and commission — including those responsible for environmental policy.
In North Carolina, citizen commissions — made up of unpaid volunteers rather than state employees — have a significant role in environmental policy. Commissions adopt most of the environmental rules enforced by the Department of Environmental Quality (DEQ). Some of the important environmental commissions: the Environmental Management Commission (water quality, air quality, waste management rules); Coastal Resources Commission (rules regulating coastal development and protecting public access to beaches and coastal waters); Marine Fisheries Commission (regulation of commercial and recreational fishing); and Oil and Gas Commission (regulation of oil and gas exploration and development).
Historically, laws creating commissions gave the Governor power to appoint all or a majority of the members. But in recent years, the General Assembly has tried to exercise greater control over some commissions by increasing the number of legislative appointees. In 2015, former Governor Pat McCrory sued the General Assembly over laws giving the legislature power to appoint a majority of three environmental commissions — the Coal Ash Management Commission, Mining Commission and Oil and Gas Commission. The governor argued the laws giving the legislature power to select a majority of commissioners violated the N.C. Constitution’s requirement for executive, legislative and judicial powers to be entirely separate. The N.C. Supreme Court ruled in the governor’s favor. An earlier post discusses the 2016 decision in McCrory v. Berger, which held that too much legislative control over appointments violated the N.C. Constitution’s “separation of powers” clause by interfering with the governor’s constitutional responsibility to manage those executive branch agencies.
House Bill 913 responds to both the McCrory v. Berger decision and a more recent N.C. Supreme Court decision, Cooper v. Berger, striking down a law similarly limiting the Governor’s power to appoint members to a combined State Board of Elections and Ethics Commission. Section 1 of House Bill 913 would amend the Constitution to allow legislative leaders to appoint all of the members of the new Board of Ethics and Elections Enforcement. But other sections of the bill propose broader amendments to the N.C. Constitution’s separation of powers clause and to the Governor’s Constitutional powers to give the legislature unbounded authority to determine how appointments are made to all boards and commissions.
The new language seems intended to sidestep the McCrory v. Berger decision by inoculating the legislature against a separation of powers challenge based on legislative appointment of all or a majority of the members on an executive branch commission. Section 2 of House Bill 913 proposes to directly amend the separation of powers clause in the N.C. Constitution (Article 1, Sec. 6). The language of the amendment appears below. Part (1) below is the existing constitutional language; the underlined language in part (2) would be added if the amendment is approved:
“Sec. 6. Separation of powers.
(1) The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
(2) The legislative powers of the State government shall control the powers, duties,responsibilities, appointments, and terms of office of any board or commission prescribed by general law. The executive powers of the State government shall be used to faithfully execute the general laws prescribing the board or commission.”
Section 4 of House Bill 913 proposes to also amend Article III, Section 5 of the N.C. Constitution to limit the governor’s executive power over commissions by making those powers subject to the legislature’s authority to determine how commission members will be appointed.
The constitutional amendment would not directly alter appointments to any state commission other than the Board of Ethics and Election Enforcement. But the broad change to the separation of powers clause could free the General Assembly to change laws governing other commission appointments in the future to give the legislature all or a majority of appointments.
Hunting and fishing. Senate Bill 677 (short title Protect Right to Hunt and Fish) proposes to add a new Section 38 to Article 1 the N.C. Constitution to protect the right to hunt and fish:
“Sec. 38. Right to hunt, fish, and harvest wildlife.
The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”
The amendment would allow regulations to protect species and maintain fish and wildlife populations for future harvest, but those would seem to be the only constitutionally protected types of regulation other than “laws concerning trespass, property rights or eminent domain”. The limit on adoption of other types of hunting and fishing regulation appears to apply to laws enacted by the General Assembly as well as rules adopted by state agencies and local government ordinances. The impact of the constitutional amendment could be significant since the language does not allow for other common types of fishing and hunting regulation such as:
♦ Public safety regulations. State laws and local ordinances regulating hunting for protection of public safety — such as restrictions on hunting within city limits or hunting close to houses and schools — could be unconstitutional under the amendment. The legislature rejected a floor amendment that would have added language allowing for public safety regulation of hunting and fishing.
♦ Regulation to protect fish and wildlife habitat. The amendment may also raise questions about the constitutionality of regulations affecting gear used by fishermen if the purpose of the regulation is to protect habitat (such as submerged aquatic vegetation or salt marshes) rather than fish or wildlife species.
♦ Regulation of hunting and fishing methods. A number of state laws and wildlife regulations limit certain types of hunting; time of day; the nature and use of traps; or put other restrictions on hunting activities. For example, Wildlife Resources Commission rules restrict use of dogs in certain hunts. A number of counties have additional local laws regulating use of lights in hunting; imposing county-specific time of day restrictions; setting standards for traps; etc. It isn’t clear that those kinds of regulations would be constitutional under the proposed amendment since they don’t obviously fit within the two categories of constitutionally protected regulation. It also isn’t clear how a decision about the constitutionality of regulations would be affected by the amendment language specifically (but not exclusively) protecting “traditional methods” of hunting and fishing.
The vote. These two proposed constitutional amendments and four additional amendments on other subjects will appear on the November ballot. Each amendment will require the approval of a majority of voters to pass.
Note: This blogpost has been corrected to note that there will be six (rather than five) proposed amendments to the N.C. Constitution on the November ballot.