NC Gov. Cooper gets tentative win in legal battle over environmental board's makeup

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A North Carolina judge has prevented for now an environmental regulatory board from canceling its lawsuit while state courts examine Gov. Roy Cooper's arguments that legislative changes in the board's makeup prevent him from carrying out effectively laws to control pollution.

Superior Court Rebecca Holt's agreed with Cooper's lawyers during a quickly scheduled hearing Thursday to issue a temporary restraining order blocking the Environmental Management Commission from dismissing its complaint against the Rules Review Commission, according to court records.

Holt also scheduled another hearing next week to weigh the Democratic governor's request to extend the blockage of the dismissal while Cooper's own broader litigation challenging the Republican-controlled legislature's recent alterations to several state boards and commissions continues. The governor and GOP legislative leaders have fought for years over the balance of power in the two branches of government.

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Legislation approved in the fall over the governor's veto ended Cooper's control over a majority of seats on each of the panels, which he contends violates the state constitution and veers from recent state Supreme Court opinions by preventing him from carrying out state laws in line with his policy preferences.

A three-judge panel Nov. 1 granted a preliminary injunction freezing those changes involving the Board of Transportation and two other boards. But it declined to block the alterations at two other panels, including the Environmental Management Commission, where until recently a governor chose nine of the 15 positions, with the General Assembly picking the other six. Now two of the governor's slots have been given to state Agriculture Commissioner Steve Troxler, a Republican, so Cooper no longer holds the majority of panel seats.

Over the last two months, however, Cooper's attorneys collected new legal ammunition to fight the Environmental Management Commission's changes. First, the newly-constituted commission picked a member appointed by the legislature to serve as chairman, unseating Cooper's appointee.

North Carolina Gov. Roy Cooper speaks with reporters after the Council of State meeting at the Department of Transportation headquarters in Raleigh, North Carolina, Tuesday, Aug. 1, 2023. (AP Photo/Gary D. Robertson)

And earlier Thursday, the commission voted 8-7 to dismiss its lawsuit against the Rules Review Commission over the rules panel's objections to the environmental panel's new discharge limits in surface waters of an synthetic industrial chemical that's considered by regulators to be a carcinogen. The Cooper administration opposed the lawsuit dismissal.

Cooper "is likely to succeed in showing that he has in fact lost control of the EMC, and the EMC has exercised its control inconsistent with the Governor’s views and priorities" on carrying out laws, the governor's attorneys wrote Thursday. Holt's decision later Thursday granting a temporary restraining order was first reported by the Carolina Journal news site.

Lawyers for House Speaker Tim Moore and Senate leader Phil Berger, who are lawsuit defendants, have defended the changes to the boards. In particular, the GOP lawmakers have pointed out that a majority of elected officials within the executive branch still choose members of the Environmental Management Commission.

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Another pending lawsuit challenges portions of a new law that strips the governor of his authority to appoint elections board members and give them to legislators. Another three-judge panel have put the election board changes on hold while a lawsuit continues.