April 11, 2014. One of the draft bills the legislature’s Environmental Review Commission approved for introduction in the 2014 session would “terminate” Governor McCrory’s Executive Order 22. ERC co-chair Ruth Samuelson indicated the bill could also become a vehicle for terminating outdated or unnecessary executive orders issued by previous governors. So the ERC bill raises two interesting questions:
1. What is the controversy behind Executive Order 22?
2. Does the General Assembly have the authority to “terminate” an executive order?
The Controversy. Governor McCrory issued Executive Order 22 in response to one section of the Regulatory Reform Act of 2013 (S.L. 2013-413). Section 59.2 changed a longstanding state rule that vehicles hauling solid waste must be leak proof and substituted a standard that the vehicles must be “designed and maintained to be leak resistant”. The legislation also amended a law enforced by the state Highway Patrol. As amended in 2013, G.S. 20-116(g)(1) now reads:
“No vehicle shall be driven or moved on any highway unless the vehicle is constructed and loaded to prevent any of its load from falling, blowing, dropping, sifting, leaking, or otherwise escaping therefrom, and the vehicle shall not contain any holes, cracks, or openings through which any of its load may escape…. For purposes of this subsection, the terms “load” and “leaking” do not include water accumulated from precipitation.”
Executive Order 22 directs the State Highway Patrol to continue to enforce the law against leakage from vehicles hauling solid waste, but also directs officers to take weather conditions into consideration. The controversy likely stems from a sentence in the executive order that directs Highway Patrol officers to issue a citation to the driver if rainfall, snowmelt or other precipitation leaking from the vehicle passed through the solid waste. In solid waste terms, liquid — including precipitation — that has percolated through solid waste becomes leachate that must be managed because of contaminants picked up from the waste material.
Executive Order 22 prompted a backlash from waste management companies that supported the 2013 legislation. In the ERC meeting, the executive order termination bill was presented as a necessary correction to an unlawful executive action. Critics of the executive order clearly believe the 2013 law prevents enforcement of G.S. 20-116(g)(1) if the leaking liquid began life as precipitation. Executive Order 22 seems to start from a different assumption — that the 2013 amendment should not be interpreted to make G.S. 20-116(g)(1) unenforceable against leaking garbage trucks. (Requiring a Highway Patrol officer to determine the original source of liquid that has percolated through the waste load and leaked onto the highway would almost certainly have that result.)
Discussion in the ERC meeting suggested that legislators continue to be interested in resolving the conflict through discussions with the Governor’s Office, but prepared the bill as a backstop.
Legislative Authority to “Terminate” an Executive Order. There was no discussion in the ERC meeting of the underlying assumption that the General Assembly has the authority to “terminate” an executive order. Article II of the N.C. Constitution vests legislative power in the N.C. General Assembly. Article III gives the Governor executive power, including the duty to “take care that the laws be faithfully executed”. The N.C. Constitution, in section 6 of Article I, also requires the legislative, executive and judicial powers to be “forever separate and distinct from each other”. So the question is whether the General Assembly’s legislative power extends to the “termination” of an executive order.
Governors use executive orders to guide the activities of executive branch agencies. An executive order cannot replace or directly conflict with laws enacted by the General Assembly. To the extent that an executive order “legislates”, it violates the N.C. Constitution. The most recent separation of powers decision by a state appellate court concerned a 2002 executive order issued by Governor Michael Easley authorizing the state budget director to transfer money from the Highway Trust Fund to cover General Fund obligations and avoid a projected budget shortfall. Two citizens, filing suit as taxpayers and bondholders, asked the court to issue a declaratory judgment finding the executive order unconstitutional. The plaintiffs in the case successfully argued that the Governor exceeded his executive budget authority and acted in conflict with statutes governing use of the Highway Trust Fund. See, Goldston v. State of North Carolina and Michael F. Easley, Governor, 683 S.E. 2d 237 (2009). So, it is clearly possible for an executive order to go too far and violate the constitutional mandate that legislative and executive powers “shall be separate and distinct”.
On the other hand, legislative actions sometimes stray into the powers of the executive. A 1982 N.C. Supreme Court decision struck down a law allocating a certain number of seats on the state’s Environmental Management Commission (EMC) to legislators. (The EMC is the executive branch commission, organized under the Department of Environment and Natural Resources, given authority to implement the state’s air and water quality laws.) The court found that legislators could not serve on a commission exercising administrative and executive authority without violating the N.C. Constitution’s mandate for separation of powers. See, Wallace v. Bone, 286 S.E.2d 79 (1982).
There don’t seem to be any court decisions in North Carolina dealing with legislative authority to terminate an executive order. In fact, there seems to be little law on executive orders at all — in North Carolina or in other states. A legislature can effectively “repeal” an executive order by adopting a contrary statute on the same subject or by withholding funding for an activity required by executive order. A Congressional Research Service guidance document on federal executive orders reports that Congress has responded to some Presidential executive orders by passing legislation simply stating that the order does not have the force of law.
To sum up the settled law: Governor McCrory can rescind or replace any executive order — including those issued by previous governors. The General Assembly can effectively nullify an executive order by adopting a contradictory law on the same subject or by exercising control over state appropriations. The idea of legislatively “terminating” an executive order based on a perceived conflict between the executive order and a statute enters new territory. In the past, those conflicts have been resolved by the courts as a matter of state constitutional law. In any case, a more direct way to legislatively resolve a perceived conflict between Executive Order 22 and the 2013 legislation would be to clarify G.S. 20-116(g)(1) to remove all doubt about the interpretation.
Unless the conflict over leaking garbage trucks can be resolved otherwise, the bill to “terminate” Executive Order 22 may create some new law on the relationship between the N.C. General Assembly and the Governor.