The North Carolina Senate is considering a bill that would significantly change appointments to several influential state boards and commissions. This post focuses on two commissions affected by Senate Bill 10 — the Coastal Resources Commission (CRC) and the Environmental Management Commission (EMC). (This analysis is based on Edition 3 of the bill.)
The bill immediately gives the new governor and legislative leadership complete control over the membership of these commissions by causing the terms of current members to end as soon as the bill becomes law — even though months or years may remain on each member’s statutory term of office. Senate Bill 10 also amends the appointment statutes for the CRC and the EMC to reduce the total number of commission members; increase the number appointed by legislative leadership (reducing the governor’s influence); and change appointment criteria. More detail on changes proposed for each commission below.
The Coastal Resources Commission (CRC) has authority to adopt rules for development in environmentally sensitive areas of the twenty coastal counties. Changes proposed in Senate Bill 10 would reduce the number of CRC members from 15 to 11 and for the first time divide appointments among the Governor, President pro tem of the Senate and Speaker of the House. (Currently all CRC members are appointed by the Governor.) The bill also changes the criteria for appointing CRC members by:
• Increasing the number of “at-large” members ( who do not have to meet specific appointment criteria).
• Eliminating seats now earmarked for members with knowledge or experience in coastal fisheries, agriculture, forestry, marine ecology, conservation, and finance.
• Removing the requirement that a super-majority of commission members (13 of the current 15 members) must live in one of the coastal counties. Under Senate Bill 10, none of the CRC members would have to actually live in a coastal county.
• Designating the six seats that have specific appointment criteria for one representative of a coastal business; two representatives of coastal land owners or developers; one member with experience in a coastal local government; and two members with a background in either coastal engineering or coastal science.
The new appointment criteria raise several concerns. The Coastal Resources Commission regulates development in the twenty coastal counties, but Senate Bill 10 would no longer guarantee representation of coastal residents on the commission. The commission would lose scientific expertise, but even more important it would lose the (nonpartisan) political breadth needed to create consensus on controversial coastal policies. Under the new appointment criteria, it would be possible to have a CRC composed entirely of members representing business and development interests, leaving participants in other parts of the coastal economy (such as fisheries, forestry, and agriculture) without influence on major coastal policy decisions.
The bill also changes the membership of the Coastal Resources Advisory Council, a non-regulatory body created to advise the Coastal Resources Commission. Most members of the Advisory Council represent local governments; each coastal county has a representative selected by the county commissioners and other members represent coastal cities or multi-county planning districts. Senate Bill 10 reduces the total number of Advisory Council members from 45 to 20 and does not set aside any seats for local government representatives. The change could leave coastal local governments with much less influence over coastal policy.
The Environmental Management Commission has responsibility for adopting state air quality, water quality, and water resource standards. Senate Bill 10 reduces the total number of EMC members from 19 to 13. The governor and legislative leaders already share authority to appoint EMC members, but Senate Bill 10 would lessen the governor’s influence on the EMC relative to the General Assembly by reducing the number of governor’s appointees to seven. Legislative leaders would continue to appoint six members, representing nearly half of the smaller EMC.
The bill makes significant changes in appointment criteria for EMC members by eliminating seats now earmarked for members with experience in public health, fish and wildlife conservation, groundwater hydrology, local government, and air pollution. The new criteria proposed for governors appointments would:
• Retain a seat on the EMC for a physician, but no longer require the physician member to have “specialized training and experience in the health effects of environmental pollution”.
• Require the governor to choose between having members with experience in hydrology, water pollution control or the effects of water pollution.
• Require the governor to choose between having a member with expertise in ecology or a member with expertise in air pollution.
• Reduce the three seats on the EMC for members of the public at large who have “an interest in water and air pollution control” to one at-large member (without the qualifying language).
The proposed changes in appointment criteria could result in a commission without expertise in critical areas. In several instances, the governor will be required to decide which of several areas of environmental expertise to exclude in making appointments. For example, choices forced by the new criteria could leave the EMC without expertise in air pollution or air pollution control – one of the most complicated and technically demanding subjects that the EMC has to address. Knowledge of hydrology, water quality, ecology and air pollution can be found on the DENR staff, but the EMC would lose the independent perspective provided by commissioners with expertise in each of those areas.
By changing EMC appointments, Senate Bill 10 will also indirectly affect the makeup of other environmental commissions that have seats designated for a member of the EMC. Those include the Mining and Energy Commission and the Sedimentation Pollution Control Commission.
Finally, Senate Bill 10 repeals language requiring that at least nine EMC members must be people who do not derive significant income from activities regulated by the commission. The language in G.S. 143B-283(c) exists in part to meet federal requirements for delegated permitting programs under the Clean Water Act and Clean Air Act. Complete repeal of the language may cause EPA to question North Carolina compliance with federal rules governing those delegated programs. More detail about this issue later.