- Associated Press - Thursday, March 5, 2015

RALEIGH, N.C. (AP) - Lawyers for Gov. Pat McCrory are pressing his case that fellow Republicans at the North Carolina legislature violated the state constitution when they created three new commissions, including the one overseeing the closure of Duke Energy’s coal ash dumps.

A three-judge panel heard arguments Thursday in Raleigh on the lawsuit filed by McCrory, who is joined in the case by former Govs. Jim Hunt and Jim Martin.

A key issue in the lawsuit is the composition of the new nine-member Coal Ash Management Commission created by the legislature in response to last year’s massive spill at a Duke Energy dump in Eden, which coated 70 miles of the Dan River in toxic gray sludge.

Under the legislation, which became law without McCrory’s signature, legislative leaders appointed six members of the commission and the governor appointed three, including the chairman. The governor’s lawyers contend that violates North Carolina’s constitutional separation of powers by granting the legislature effective control of environmental enforcement functions that should reside with the executive branch.

The new commission is tasked with overseeing the cleanup of Duke’s 32 coal ash pits across the state. Duke announced last month it would plead guilty to nine federal criminal counts involving violations of the Clean Water Act and pay a $102 million in fines and restitution.

McCrory’s lawsuit also questions the creation of two other panels set to start up this summer - the Oil and Gas Commission and the state Mining Commission.

“This case comes down to two fundamentally different views of how our government should function,” said John Wester of Charlotte, one of the private lawyers representing McCrory. “Separation of powers is the cornerstone of state government.”

The lawyers representing the legislature countered by listing numerous long-standing state commissions for which the legislature appoints members, including the Wildlife Resources Commission and the board overseeing the state’s public universities.

Senate leader Phil Berger has said it was essential to create an independent board to oversee Duke’s cleanup of the coal ash dumps because McCrory worked for the company for 29 years prior to becoming governor.

McCrory’s staff did not respond to messages asking how much taxpayer money is being spent on legal fees for the governor’s lawyers.

The lawsuit is among the first tried under a new method approved last year that sends lawsuits challenging the constitutionality of new state laws to a special panel of three Superior Court judges. The legislature instituted the new system after individual trial judges kept striking down laws approved by Republican lawmakers. Any appeal would go directly to the state Supreme Court.

Superior Court Judge Howard Manning, a member of the three-judge panel that heard arguments Thursday, gave no indication of whether they might issue a decision before two of the new commissions are seated in a couple months.

“We’re not going to be pushed,” he said.

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Follow Biesecker at https://Twitter.com/mbieseck

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