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Cooper Challenges Rules Roadblocks

For decades, anti-environmental legislators have put up roadblocks to stronger pollution protections. Now Gov. Roy Cooper is fighting back in court.

Since 1986, a shadowy administrative board called the Rules Review Commission (RRC) has wielded life-or-death power over state executive branch agencies’ efforts to enforce laws intended to protect public health. Even though the RRC exercises administrative rather than legislative power, all 10 members are appointed by the state legislature’s top leadership, and they have used those appointments to fill the commission with pro-polluter members. Time and again, the RRC has effectively vetoed rules intended to strengthen environmental and health protections.

On August 28, Gov. Cooper sued, asserting this setup allows the legislature to assume powers which the state constitution reserves for the governor. He is asking the court to rule that the RRC as presently formed is unconstitutional, and to order that a majority of the RRC’s membership be appointed by the governor. 

The lawsuit points out the RRC has blocked about 200 rules from taking effect over the past two years alone. Rules are blocked on such vague grounds as “unnecessary” or as allegedly beyond statutory authority. Under constitutional separation of powers principles, a dispute between the legislative and executive branches over the interpretation of a law would properly be up to the courts to decide — not decided unilaterally by legislative appointees. 

“The current makeup of the RRC allows the legislature to interfere with and undermine the executive branch’s authority to establish policy through rulemaking. This authority is used to make important rules that protect the environment, safeguard public safety, and preserve public and individual health,” said the news release from the governor’s office. “It could even block the executive branch’s ability to quickly and fully respond to COVID-19 related issues. In recent years, the RRC has been particularly active in second-guessing the policy judgments of the Department of Health & Human Services.”

Other rules which have been blocked by the RRC include election law clarifications intended to avoid confusion or make voting easier. The timing of this lawsuit may also provide a preemptive strike against late RRC attempts to sow confusion over the voting process by contesting state Board of Elections rulings.

CIB will watch for the courts’ rulings in this case.

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