NORTH CAROLINA — Two regulatory agencies face a hearing in a lawsuit over coastal protection policies representing a broader power struggle between the state’s legislative and executive branches. A recent bill would advantage a General Assembly-appointed body that has repeatedly blocked executive actions.
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The Coastal Resources Commission is a 13-member body that establishes state coastal protection policies, including the Coastal Area Management Act and the Dredge and Fill Act.
The Rules Review Commission is charged with reviewing rules enacted by state agencies to ensure compliance with the North Carolina Administrative Procedure Act. It is a 10-member panel appointed entirely by Senate President Pro Tem Phil Berger and House Speaker Tim Moore.
The Rules Review Commission rejected 30 of the Coastal Resource Commission’s longstanding coastal protection rules in October 2023. Ashley Berger Snyder — the Codifier of Rules and senate president’s daughter — then stripped the 30 rules from the state’s administrative code.
The Coastal Resources Commission sued the Rules Review Commission to reinstate the rules in November 2023. They include a broad range of guidelines including enforcement of CAMA development permits, variance requests, and designation of certain regions — including Permuda Island off North Topsail — as areas of environmental concern.
The Coastal Resources Commission argued removing the rule would eliminate the state’s ability to protect fragile coastal habitats and regulate improper sand removal and development in vulnerable areas.
In March, the CRC unanimously approved temporary adoption of 16 of the 30 rejected rules it deemed immediately essential. The Division of Coastal Management received 228 public comments in support of the temporary rules and six opposed from representatives of the North Carolina Home Builders Association and Cedar Point Developers.
Several coastal municipalities, including North Topsail, sent letters in support of the temporary rules.
Beach Inlet and Sound Advisory Committee chair Larry Strother forwarded a February report to aldermen warning removing the rules would threaten federal beach renourishment funding, harm local governments’ ability to collect permit fees, negatively impact the use of dredge materials, and diminish protection of Permuda Island and other valuable state resources.
“In short the entire CAMA permitting and implementation system may fail,” he wrote.
The Rules Review Commission has faced lawsuits from a number of executive branch agencies in recent years — including Gov. Roy Cooper — for overstepping its statutory authority and providing an unconstitutional veto on executive branch powers.
The Rules Review Commission contends the CRC does not have statutory authority to adopt policies for the coastal management program through rulemaking, found some rules unnecessary, and argued some rules’ language was excessively ambiguous, according to legal filings. Alternatively, the Coastal Resources Commission maintains the 30 rules in question have been in place for decades, are part of the agency’s delegated responsibilities under state law, and are essential for state coastal management.
Department of Justice environmental division special deputy attorney general Mary Lucasse is representing the Coastal Resources Commission; she told Port City Daily CRC does not comment on ongoing litigation. Rules Review Commission attorney John Branch III did not respond to a request for comment by press.
A hearing for the case will be held Wednesday in Wake County Superior Court, a venue with unique status in North Carolina. Under the Administrative Procedures Act, it is the jurisdiction where state agencies can request judgments to challenge Rules Review Commission objections to proposed rules.
A controversial 131-page Helene relief bill, SB 382 — which passed the supermajority Senate vote against Cooper’s veto last week but still has to be taken up by the House on Wednesday — removes two superior court judge positions.
In a 2021 lawsuit, Wake County Superior Judge Bryan Collins ruled in favor of the Coastal Conservation Association — which filed a brief in support of the Coastal Resources Commission in its case against the Rules Review Commission. The lawsuit alleges the state breached public trust by allowing overfishing and destruction of coastal habitats.
But SB 382 creates two new special superior court positions appointed by the General Assembly and would get rid of Collins’ district at the end of his term. The bill also allows Chief Justice Paul Newby to appoint senior superior court judges in each district — currently the position is held by the longest serving judge — who have authority to appoint clerks and magistrates in their jurisdictions.
North Carolina For the People executive director Melissa Price Kromm argued many provisions in SB 382 — including replacing elected judges with appointments — would be challenged in court. NC Center for Public Policy Research president Ran Coble similarly contended SB 382 represents a broader trend of Republican lawmakers violating the state constitution’s separation of powers clause in a recent Raleigh News & Observer op-ed.
“What they are doing is by design,” Kromm told Port City Daily Tuesday. “They don’t believe in checks and balances. They don’t believe in creating constitutional laws.”
Kromm noted SB 382 would also limit the powers of incoming Democratic Attorney General Jeff Jackson. Under the bill, the Attorney General is banned from taking positions that are inconsistent with General Assembly leaders, including in disputes between state agencies.
Attorney general and incoming governor Josh Stein represented the Environmental Management Commission in a lawsuit against the Rules Review Commission for rejecting its proposed numerical limits on 1,4-dioxane, a likely carcinogen, in 2022.
In October, Stein sent a memorandum to Wake County Superior Court requesting a single superior court judge oversee a separate case determining the state’s ability to limit 1,4-dioxane discharges without numerical standards.
The Department of Justice and Department of Environmental Quality are appealing chief administrative judge Donald van der Vaart’s September ruling disallowing the state from imposing 1,4-dioxane limitations. Van der Vaart was appointed by chief supreme court justice Paul Newby and oversees the Office of Administrative Hearings, which includes the Rules Review Commission. The three municipalities who challenged the 1,4-dioxane limitations are requesting the state pay $1 million to cover legal expenses.
SB 382 also gives $250,000 to cover the Rules Review Commission’s legal expenses after facing lawsuits from multiple state agencies. The lawsuits allege it acted outside its statutory authority, including with the Coastal Resources Commission, Environmental Management Commission, North Carolina Department of Health and Human Services and Commission for Public Health.
The Rules Review Commission has at least four in-house attorneys but made a $100,000 budget request for private legal counsel earlier this year. As of January 2024, the agency spent $14,357 on outside counsel in its suit against the Environmental Management Commission and $35,380 in its lawsuit against the Coastal Resources Commission.
Baker Donelson attorney John Branch III and Nelson Mullins attorney Martin Warf are leading the Rules Review Commission’s suit against the Coastal Resources Commission. Both attorneys have represented the GOP in recent gerrymandering lawsuits heard in Wake County Superior Court. Warf represented Republican lawmakers in Cooper’s lawsuit to block changes in a 2023 bill that would give the General Assembly power to appoint members of the state board of elections.
Those proposed changes would be reversed by SB 382, which gives appointment authority of the counties’ elections board chairs to incoming Republican state auditor Dave Boliek. Currently, the state board of elections appoints two members from each party while the governor has selected the chairs It’s led to primarily Democrat-favored majorities on the boards, but SB 382 would shift it.
The 2023 budget bill expanded Rules Review Commission authority to send rules it objects to back to agencies and increased compensation for RRC members from $200 to $250 for each day of service. A bill enacted shortly after stripped the governor of appointment authority over several state commissions, including the Coastal Resources Commission. Six of the commission’s members are now appointed by the governor, six are chosen by legislators and one is appointed by the state insurance commissioner; the governor previously appointed nine members and selected its chair.
The Topsail Island Shoreline Protection Commission also sent a letter in support of the Coastal Resources Commission’s temporary rules earlier this year. It is a coalition of Topsail Beach, Surf City, and North Topsail representatives focused on lobbying for state and federal policies to preserve shorelines and benefit coastal towns.
TISPC will hear an overview of the coastal rule dispute at its meeting this week. TISPC vice chair Mike Benson, who is also North Topsail mayor pro tem, told Port City Daily he could not comment on the litigation.
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