December 14, 2023. Having regained a veto-proof majority in the state legislature, the N.C. General Assembly returned to a very aggressive effort to influence environmental rules in 2023. The annual Appropriations Act (House Bill 259), the N.C. Farm Act of 2023 (Senate Bill 582) and the Regulatory Reform Act of 2023  (House Bill 600) all contained provisions weakening existing environmental protections and in some cases preventing adoption of new standards. This post covers the  most significant legislation affecting state water quality protections:

AQUACULTURE PERMITTING

Replace the existing NPDES General Permit for aquaculture operations. The Clean Water Act requires a National Pollutant Discharge Elimination System (NPDES) permit for any release of waste to surface waters.  North Carolina has developed a number of  NPDES “general permits” to cover wastewater discharges from facilities engaged in similar activities and producing wastewater with similar characteristics. NPDES General Permit  NCG530000 covers wastewater from seafood packing and rinsing; aquaculture operations; and other activities producing similar wastewater. A facility can be covered under the general permit by meeting conditions in that permit; otherwise, the facility can apply for an individual NPDES permit tailored to the operation. 

Section 14 of Senate Bill 582 directs DEQ and the EMC to replace the current general permit (in effect since December 1, 2021) with the previous version of NCG530000. Reverting to the earlier permit will eliminate water quality monitoring requirements for nitrogen and phosphorus that were added to the permit in 2021.  Aside from the environmental implications of eliminating water quality monitoring for nutrients released from aquaculture operations, the provision raises another legal question and policy question: Does the provision violate the N.C. Constitution by allowing the legislature to intervene directly in the issuance of environmental permits?

Under the N.C. Constitution, the legislature adopts the laws under which state agencies operate, but responsibility for implementing those laws rests with executive branch agencies like DEQ.  The issuance of an NPDES permit (whether a general permit or an individual permit) is clearly within the authority and responsibility of the executive branch.  A legislative directive to modify or replace a specific permit appears to cross a significant constitutional line.   Aside from the constitutional  issue, legislative intervention in a permitting action sets a precedent for direct political intervention in permit decisions.  

ANIMAL OPERATIONS

Groundwater compliance boundaries for animal operations.  A little background — North Carolina’s groundwater protection program requires a state permit for the release of  pollutants to groundwater. Permitted waste disposal facilities (such as landfills)  have a groundwater  “compliance boundary” that (for most facilities)  extends 250 feet from the waste disposal area. Inside the compliance boundary,  pollutants in groundwater may exceed groundwater quality standards; beyond the compliance boundary, groundwater must meet all standards. Permits require regular groundwater monitoring inside and outside the compliance boundary to ensure groundwater standards are met.

There have long been concerns that animal waste systems such as swine waste lagoons and spray fields may result in groundwater contamination. But unlike other types of waste disposal facilities,  animal waste systems have not been required to routinely monitor for groundwater impacts.  State permits for animal operations have only required groundwater monitoring under very narrow circumstances.

This session, the legislature amended the animal waste system permitting law, G.S. 143-215.10C,  to  require a groundwater compliance boundary at animal operations:

“[animal operations] shall have a compliance boundary as may be established by rule or   permit for various categories of animal waste management systems and beyond which       groundwater quality standards may not be exceeded.”

The provision also directs the Environmental Management Commission  (EMC) to require investigation and corrective action (such as remediation)  if a facility violates groundwater standards beyond the compliance boundary. (See: House Bill 600, Sec.15). The provision may lead to an interesting rule-making process,  since implementation of a compliance boundary and corrective action require groundwater monitoring and animal operations have strongly resisted monitoring in the past.

 1,4 DIOXANE

Health Risk Assessment and Technology Review. The legislature directed DEQ to do a human health risk assessment of 1,4 dioxane in drinking water based on peer-reviewed studies and report back to the legislature by May 1, 2024. The purpose of the state study is unclear.  In 2020, EPA finalized a human health risk assessment for 1,4 dioxane that concluded  1,4 dioxane has  adverse effects on humans and is a likely human carcinogen.  That risk assessment focused largely on worker exposure, although it also considered public exposure to 1,4 dioxane in consumer products and surface water. In July 2023,  U.S. EPA released a Draft Revised Risk Determination for 1,4 dioxane for public comment. The  revised risk determination  evaluates risk associated with additional pathways for exposure, including  exposure to 1,4 dioxane in drinking water. The revised draft risk assessment finds that 1,4 dioxane in drinking water presents an unreasonable risk to human health.

The state study provision also directs the N.C. Collaboratory at UNC-CH to evaluate technologies commercially available to remove 1,4 dioxane from wastewater effluent at different flow volumes and report its findings on the technical and economic feasibility;  limitations of each treatment technology; and a cost benefit analysis to the legislature by May 1, 2024. (See: House Bill 600, Sec. 9)

STORMWATER.  Continuing a ten-year pattern, the legislature amended  state stormwater law to further limit state and local government stormwater control requirements. Most of the stormwater amendments appear in the 2023 Regulatory Reform Act (House Bill 600):

Treatment of stormwater from impervious areas added as part of a redevelopment project.  G.S. 143-214.7(b3)  already prevented stormwater permitting agencies from requiring new stormwater controls for existing developed areas included in a redevelopment project. But the law expressly allowed permitting agencies to require treatment for stormwater from impervious surface added during redevelopment. That authority remains in the law, but the 2023 amendment  inserts new language allowing the developer to  “elect” to provide stormwater treatment for new impervious area  — seeming to create a conflict within the law. As a result, It isn’t clear whether treatment of stormwater from new impervious area can still be required or is entirely optional. (See: House Bill 600, Sec. 2)

Prohibit stormwater permit conditions related to adjacent property.  Under a new subpart added to  G.S. 143-214.7,  DEQ  cannot require a new permit applicant to take any action with respect to an “unaffiliated adjacent property” or condition issuance of a new permit on action to be taken by an existing permit holder with respect to an unaffiliated adjacent property.  It isn’t clear what real world situation the new provision addresses since the state stormwater program has never required a developer to install stormwater controls on adjacent property. The provision may be intended to prevent DEQ from requiring a new development project to adequately treat stormwater entering the development site from another property, but more background will be needed to understand the provision’s impact. (See: House Bill 600, Sec. 2)

Exempt private streets from post-construction stormwater requirements. The provision directs the  EMC to exclude linear transportation projects that are: 1.  part of a common plan of development;  and 2. not constructed by DOT or a municipality from the calculation of built-on area for purposes of stormwater management. As a practical matter, that means private subdivision streets would not be included in calculation of stormwater runoff from the development and as a result the stormwater system would not be sized or designed to manage the stormwater from those surfaces. (See: House Bill 600, Sec. 4).

Exempt airport construction borrow sites and staging areas from Neuse buffer certification requirements. State stormwater standards already provided special consideration for  airport facilities particularly with respect to mandatory stream buffers. The new provision redefines “airport facilities” to include borrow sites and staging areas for airport-related construction . Under the provision, construction of borrow sites and staging areas within a stream buffer will not require prior approval normally granted through issuance of a certification for the activity under 15A NCAC 2B.0611(b). The provision requires mitigation of the buffer impacts consistent with the Neuse buffer rules, but it is not clear how buffer impacts will be measured and mitigation calculated in the absence of DEQ certification.  (House Bill 600, Sec. 21).

Timelines for review of state stormwater permits. Amends G.S. 143-214.7 to add timelines for DEQ review of stormwater permit applications. DEQ staff must do a completeness review within 10 days of receiving the application. If the application is complete, a 70-day technical review period begins. The provision also sets out specific requirements and timelines for DEQ to request additional information once the technical review begins. The provision directs that permits should be issued for a term not to exceed 8 years. (See: House Bill 259, Sec. 12.12.)

WATER SUPPLY WATERSHEDS

 Water supply watershed redevelopment.  Amends G.S. 143-214.5(d3) to allow redevelopment of nonresidential properties to exceed water supply watershed density limits without providing stormwater treatment for any increased density (as compared to the previous land use). As amended, the law would allow redevelopment at increased density without stormwater treatment based on either the preexisting density or the increase in density. (See: House Bill 600, Sec. 1)

Density exception for two local government jurisdictions. The legislature created a new exception for Iredell County and the Town of Mooresville that would allow up to 20% (instead of 10%) of the water supply watershed outside WS I and the critical areas of WS II, III and IV to be developed at up to 70% impervious area. Creation of an exception to an environmental rule for two named local governments may be inconsistent with a provision in the N.C. Constitution prohibiting “local acts” related to public health.  In any case, the provision creates a special advantage for two named local governments that was not based on any evaluation of the impact on drinking water quality. (See: House Bill 600, Sec. 5)

WASTEWATER DISCHARGE 

Discharge of domestic wastewater to low and no flow streams. Amends G.S. 143-215.1 to add a  new subsection (c8) allowing discharge of domestic wastewater to low or no flow streams. “Domestic wastewater” generally refers to wastewater from plumbing fixtures in residences and other buildings; it includes human waste and wastewater from kitchens, baths and  laundry facilities. “Domestic wastewater” does not include wastewater from industrial processes.  G.S. 143-215.1 (c8)  will allow discharge of domestic wastewater that meets specific water quality standards set out in that subpart of the law. Those standards  are very tight with respect to conventional pollutants (such as fecal bacteria and nitrates), but the law does not address all potential pollutants.  For example, there are no standards for toxic pollutants and the law prohibits state permit writers from imposing additional conditions to address pollutants not addressed in the provision.  (See: House Bill 259,  Sec. 12.9)

WATER QUALITY CERTIFICATION 

Issuance of water quality certifications for dredging and energy projects. Under Section 401 of the Clean Water Act, an applicant for a federal permit must provide a certification from the state that the permitted project will be consistent with state water quality standards. The provision puts new restrictions on state issuance of Section 401 Water Quality Certifications for state-funded maintenance dredging projects  and projects involving distribution or transmission of energy or fuel (including natural gas, diesel, petroleum, or electricity):

• DEQ must determine completeness of the Section 401 application within 30 days.

• A decision to issue or deny the certification must be made within 60 days if no public    hearing is required or within 90 days if there is a hearing.

• Conditions on the Section 401 certification are limited to those necessary to ensure that proposed discharges of pollutants will comply with state water quality requirements

STUDY WATER QUALITY STANDARDS.  

Narrative water quality standard.  Some background — State water quality rules set specific numerical water quality standards for many pollutants. But since new pollutants of concern emerge over time, the rules also include  a “narrative standard” for toxic pollutants that do not yet have a numerical standard in rules. The “narrative standard” provides specific technical guidance to permitting staff on how to calculate a numerical standard for the pollutant.  Most recently, DEQ has used the narrative standard rule, 15A NCAC 2B.0218,  to calculate a water quality standard for 1,4 dioxane which (as noted above) is a likely human carcinogen. The numerical value derived from the rule then becomes the reference point for limiting discharges of the pollutant to surface waters. The narrative standard provides a predictable, scientifically based method for setting a water quality standard for an emerging pollutant until a numerical standard can be incorporated into the rules — a process that can take several years.

A provision in the Regulatory Reform Act of 2023 requires the EMC to study  narrative water quality standards and report to the legislature by June 1, 2024. The study will include review of the methods for setting a water quality standard under the rule; narrative standards adopted by other states;  and U.S. EPA requirements for adoption of narrative standards. The EMC is to report its findings, including any recommendations for legislative action, to the Joint Legislative Commission on Governmental Operations. (House Bill 600, Sec. 8). The study likely responds to legal action by several local governments challenging use and enforcement of the narrative standard to limit discharges of 1,4 dioxane.

DREDGING MORATORIA

Restriction on dredging moratoria. The legislature amended G.S. 113-229 (the State Dredge and Fill Act) to add a new subsection limiting the ability of state agencies to suspend authorization for dredging in state waters to protect aquatic resources. Dredging moratoria are often seasonal, corresponding to fish spawning activity.  The new provision limits dredging moratoria unless the restriction on dredging activity is required under the Clean Water Act, Endangered Species Act, or other applicable federal law. (House Bill 600, Sec. 10.5)

DEQ’s  Division of Coastal Management issues the permits required under the State Dredge and Fill Act, but the permits also involve review by other environmental and natural resource agencies  including the state water quality program. Most dredging moratoria enforced in N.C. have been adopted under state law authority to protect fisheries habitat and particularly primary nursery areas. It is not clear whether all of the existing  state moratoria on dredging are required by federal laws and rules.

This is another instance of the General Assembly deciding that North Carolina has no need or interest in protecting state natural resources apart from meeting requirements of federal law.

Wetlands

Limit state water quality protection of wetlands. A provision in Senate Bill 582 directs the EMC to define “wetlands” for purposes of state water quality regulations to include only wetlands within the federal permitting jurisdiction of U.S. EPA and the U.S. Army Corps of Engineers under the Clean Water Act. The effect of the provision is to limit all state water quality protections to wetlands with a surface connection to rivers, lakes and streams that are “waters of the U.S.”  The definition change affects state rules that set water quality standards limiting discharge of pollutants to wetlands as well as rules permitting placement of fill material in wetlands.

Limiting state wetlands protection to wetlands in federal Clean Water Act jurisdiction will exclude wetlands that have a groundwater rather than surface connection to  water bodies. It may also exclude wetlands separated from surface waters by a manmade structure and those with a seasonal rather than consistent surface connections. The full extent of the impact on state wetlands will depend on interpretation of the recent U.S. Supreme Court decision in Sackett v. U.S. EPA which significantly restricted federal wetlands jurisdiction. The N.C. Attorney General’s Office has advised the EMC and DEQ that the new state law provision has the effect of voiding state legislation enacted in 2015 that authorized state permitting requirements for basin wetlands and bogs. (See: Senate Bill 582, Sec. 15). Much more detail on the state wetlands provision can be found in earlier posts here and here.

June 7, 2023 — In an unfortunate sequence of events, the U.S. Supreme Court has issued a decision significantly limiting  federal Clean Water Act regulation of wetlands  just as the N.C. General Assembly has been moving legislation to limit state water quality protection for wetlands.

First, some background. Historically, states had the primary responsibility for protecting state waters from pollution. But in 1972, Congress adopted the Clean Water Act and asserted federal jurisdiction over  “waters of the United States” to create a national water pollution control program.  The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) share responsibility for implementing the Clean Water Act.  Jointly adopted EPA/Corps rules define “waters of the United States” and in doing so establish the scope of  federal jurisdiction to enforce Clean Water Act permitting requirements for both the discharge of pollutants to waters and depositing fill material in waters.

Legal warfare over the “waters of the U.S.” definition has now raged for decades — in large part because of the convergence of two factors: 1. The  EPA/Corps definition of  “waters of the U.S.”  included many wetlands; and 2.  Section 404 of the Clean Water Act prohibits placing fill material in  waters of the United States without a permit from the Corps. Given the definition of “waters of the U.S.”, Section 404 became a hurdle for development of some properties.

The Sackett Decision. After decades of lawsuits and several previous federal court decisions, the U.S. Supreme Court  issued an opinion two weeks ago that greatly limits federal  Clean Water Act jurisdiction over wetlands. The Supreme Court case, Sackett v. EPA, involved a Corps of Engineers enforcement action against an Idaho couple for  filling  wetlands without a Section 404 permit. The Corps determined that wetlands on the Sackett property  — which were adjacent to a ditch that drained to a stream that flowed into a large lake — were “waters of the U.S.” that could not be filled without a permit.

The Sacketts challenged the Corps enforcement action and the U.S. Supreme Court ruled against the Corps jurisdictional determination. All nine justices agreed that the Sackett property fell outside the scope of “waters of the U.S.”, but the justices splintered on the legal basis for ruling in the Sacketts’ favor. A number of justices concluded that the Sackett property fell outside federal jurisdiction even under current  EPA/Corps rules defining “waters of the U.S.” But a plurality of four justices issued an opinion striking down the current EPA/Corps jurisdiction rules entirely, finding the  rules to be inconsistent with the intent of the Clean Water Act. The four justices ruled that the Clean Water Act extends:

to only  those “wet-lands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters.

Sackett v. EPA, 598 U.S. _____ (2023)  p. 27.

Under existing EPA/Corps rules, wetlands without a continuous surface connection to a body of water could still be “waters of the U.S.” as long as the wetland had  a significant “nexus” to surface waters — such as a hydrological connection through groundwater.  The sweeping decision by the four Supreme Court justices in Sackett means many of those wetlands will likely fall outside federal regulatory jurisdiction in the future.  Wetlands separated from surface water by an artificial barrier such as a road or berm may also fall out of federal regulatory jurisdiction.  The ruling has significant implications for North Carolina wetlands long assumed to be covered by the Clean Water Act — such as the pocosins (large freshwater swamps) in eastern North Carolina that may have only a groundwater connection to surface waters. 

Back home. Before the Supreme Court issued the Sackett decision,  the North Carolina Senate proposed legislation to limit state water quality regulation of wetlands to only those wetlands that fall under federal Clean Water Act jurisdiction.  Senate Bill 582 ( North Carolina Farm Act of 2023)  includes a provision that would prevent water quality rules  that apply to “waters of the state” from applying to wetlands that are not  “waters of the United States” regulated under the federal Clean Water Act:

July 12, 2022 — On June 30, the U.S. Supreme Court issued a decision striking down an Obama era  rule regulating carbon dioxide (CO2) emissions from existing power plants. The decision in West Virginia v. EPA held the Obama administration’s Clean Power Plan Rule exceeded EPA’s  authority under the Clean Air Act.  The decision is important for what it did and what it didn’t do.

Three key takeaways from the court’s decision:

1. The Court did not rule that EPA lacks authority to regulate greenhouse gas emissions from power plants or other sources. Section 111 of the Clean Air Act authorizes EPA to address air pollution from both new and existing sources if the pollutant endangers public health or welfare. A 2007  Supreme Court decision (Massachusetts v. EPA)  held that CO2 and other greenhouse gasses meet the definition of an air pollutant under the Clean Air Act.  In 2009,  EPA made a finding that six greenhouse gasses endanger public health and welfare because of their contribution to climate change. The West Virginia v. EPA decision does not undermine either the Massachusetts v. EPA decision or EPA’s 2009 endangerment finding.
2. The West Virginia v. EPA decision held that the method EPA chose to set CO2 emission limits for existing power plants in the Clean Power Plan Rule exceeded EPA authority under Section 111(d) of the Clean Air Act.
3. In finding that EPA exceeded its authority, the Court relied on the “major questions doctrine”.  The Court indicated that clear Congressional authorization will be required when the breadth of  an agency action has such “economic and political significance” that it raises questions about Congressional intent to grant such broad power.  That part of the decision will affect future EPA actions beyond those addressing greenhouse gas emissions and  has implications for all federal agencies.

Background on the Clean Power Plan Rule and the basis for the Court’s decisions below.

The  Clean Power Plan Rule.  Under Section 111 of the Clean Air Act,  EPA has authority to regulate proposed new sources of a pollutant that “may reasonably be anticipated to endanger public health or welfare”. Section 111 requires EPA to set the emission limit for the pollutant based on  the “best system  of emissions reduction” after taking into consideration cost, other health and environmental impacts and energy needs. In 2015,  EPA  proposed CO2 emission limits for new power plants based on a combination of the use of high efficiency processes and carbon capture technology.

The  West Virginia v. EPA decision did not affect EPA’s CO2 emission limit for new power plants.  But when EPA has set a standard for new sources of a pollutant, Section 111(d)  allows EPA to direct states to set performance standards for existing sources in the same category.   Given the practical difficulty and potential cost of retrofitting existing sources, Section 111(d) allows flexibility in setting  those performance standards.  EPA’s practice  has been to develop guidelines for state performance standards under Section 111(d) based on the “best system of emissions reduction”,  but taking into consideration the cost and energy impacts specific to existing sources.

EPA’s  Clean Power Plan Rule  set out guidelines for state adoption of CO2 performance standards for existing power plants. EPA based the CO2 emission limit on a combination of three CO2 reduction measures: 1.Heat rate improvements that would cause coal-powered plants to burn coal more efficiently; 2. A shift in power generation from coal to natural gas-fired plants; and 3. Additional shifting of energy generation from coal or natural gas to renewable sources such as solar and wind energy. In taking that approach, EPA acknowledged that  heat rate improvements at individual coal-fired plants would have very limited benefit, making a shift in energy generation necessary to achieve significant reductions in CO2 emissions.

EPA concluded that electric utilities could reasonably reduce reliance on coal generation from 38% of total power generation to 27% by 2030 and calculated a CO2 emission limit for existing power plants based on that assumed level of generation shifting from coal to natural gas and renewable energy.

The “Major Question”.  The U.S. Supreme Court decision in West Virginia v. EPA focused on EPA’s use of generation shifting as a basis for setting CO2 emission limits for existing power plants. The Court noted EPA’s past practice of  setting emission limits based on pollution reduction technologies or operating conditions that could be implemented at an individual plant. The Court held that EPA’s novel approach to setting a CO2  emission limit and the potential economic impact on  the entire power generation system required specific Congressional authority:

Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. [Citations omitted.] Under this body of law, known as the major questions doctrine… the agency must point to “clear congressional authorization” for the authority it claims.

Given the absence of express Congressional authority to use generation shifting to limit CO2 emissions, the Court held EPA had exceeded its authority in adopting the Clean Power Plan Rule.

The Court admits that the major questions doctrine overrides normal rules of statutory interpretation. In other words, the Court can use the doctrine to find no authority for an agency regulation even if the normal rules of statutory interpretation may support the agency action.  In West Virginia v. EPA, the Court leaned heavily on the novelty of using generation shifting to reduce pollution and projections that forcing a shift from coal to natural gas and renewable sources could raise energy costs. The Court didn’t exactly find that Congress failed to authorize generation shifting as a system of pollution reduction. Instead, the Court  talks about “doubting”  or being “skeptical” that Congress intended to authorize EPA to require generation shifting given the possible cost and impact on the power system.

The Dissent. The three dissenting justices, in an opinion written by Justice Kagan, noted that Section 111 directs EPA to select a system of pollution reduction rather than a pollution control technology. The dissenters noted that EPA has used cap and trade programs  — which allow an individual facility to purchase pollution reduction credits from another source  instead of implementing control technology — as part of a system for reducing emission of other pollutants.

The dissenting justices argued that Section 111(d) gave EPA  authority to include a shift in power generation as part of a system of reducing CO2 emissions from power plants. The dissent also questioned the majority’s leap to a new and broad application of the  “major questions” doctrine instead of applying the normal rules of statutory construction.

Questions about the Major Questions Doctrine.   The decision in West Virginia v. EPA  states (and uses) the  “major questions” doctrine more broadly than previous cases. The breadth could be problematic  given the lack of guidance in the decision on how to apply what appears to be a very subjective standard.  Based almost entirely on the fact that the generation-shifting in the Clean Power Plan Rule represented a new  approach to pollution reduction, the Court

[doubted]  that “Congress  . . . intended to delegate . . . decision[s] of such economic and political significance,” i.e., how much coal-based generation there should be over the coming decades, to any administrative agency.

The “economic and political significance” of an agency’s exercise of authority could be very much in the eye of the beholder. In 1964, Justice Potter Stewart attempted to explain how the Supreme Court distinguished Constitutionally protected free speech from unlawful obscenity by saying “I shall not today attempt further to define the kinds of material I understand to be embraced [by the terms pornography or obscenity]…[b]ut I know it when I see it…” The major questions doctrine may be similar.  The West Virginia v. EPA decision doesn’t indicate what criteria for economic and political significance the Court will use to decide whether the doctrine applies.  Apparently, the Court will know economic and political significance when it sees it.

Effect on State Greenhouse Gas Policies. The West Virginia v. EPA decision doesn’t have any effect on state authority to regulate greenhouse gas emissions. State environmental agencies operate under authority granted by state law rather than federal law. The Clean Power Plan Rule never went into effect as a result of  lawsuits challenging the rule and the Trump administration’s later effort to repeal it. So at present no federal rule compels the state to act, but  nothing prevents the state from acting on its own.

Update: The title of this post has changed.

June 2, 2021 — After a month long delay,  the Senate Agriculture, Energy and Environment Committee voted along party  lines today to disapprove Governor Cooper’s nominee to be Secretary of the Department of Environmental Quality.  The committee held a hearing on the nomination of Dionne Delli-Gatti a month ago, but took no action on the nomination. Today,  the committee voted to disapprove the nomination on a motion by Sen. Paul Newton. Sen. Newton, a former president of Duke Energy’s North Carolina operations,  expressed dissatisfaction with Delli-Gatti’s earlier responses to questions about Cooper administration policies on matters of particular interest to Duke Energy. Sen. Newton described as “disqualifying”  Delli-Gatti’s failure to articulate Cooper’s policy on expansion of natural gas in the state and lack of familiarity with the proposed Mountain Valley natural gas pipeline project. The committee chair denied requests by Democratic committee members to give Ms. Delli-Gatti an opportunity to respond to Sen. Newton’s criticism and answer additional committee questions.

The General Assembly  amended state law to require Senate confirmation for appointed department heads in 2016 after Cooper defeated incumbent Republican Pat McCrory in the governor’s race. (See: Section 38 of Session Law 2016-126 amending N.C. General Statute §143B-9.)  After taking office, Governor Cooper filed a lawsuit to challenge the confirmation requirement as an unconstitutional interference with the exercise of the Governor’s executive powers.   In a  December 21, 2018 opinion, the N.C. Supreme Court  held  that the confirmation requirement did not violate the N.C. Constitution’s guarantee of separation of powers between the Governor as chief executive and the legislature. Cooper v. Berger, 371 NC. 799 (2018).

What now?  The committee vote serves as a recommendation to the full Senate; it does not end the  confirmation process.  But Republican opposition to Delli-Gatti’s nomination appears to be set. Senate President pro tem Phil Berger called on Governor Cooper to withdraw the nomination prior to an anticipated vote on the Senate floor tomorrow.

As amended in 2016, G.S. 143B-9 indicates that a department head cannot continue to serve once the Senate has adopted a disapproval resolution.  The law specifically says that  a department head who is appointed when the legislature is not in session may only serve in the position until either the legislature has voted to disapprove the appointment or has adjourned the next session of the General Assembly for at least 30 days without approving the nomination.  That language seems to foreclose the possibility of a defeated nominee continuing to serve as acting department head until the Senate confirms a new appointee — although the courts have never been called on to interpret the law.

If the Senate follows through on the disapproval resolution  (or Governor Cooper withdraws the nomination), this will be the first instance of the legislature failing to confirm a governor’s appointee.