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.