Cooper Order Tries to Circumvent State Environmental Rulemaking | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the John Locke Foundation. The author of this post is Jon Sanders.

• North Carolina's "no more stringent" law forbids state environmental agencies from imposing environmental rules that are stricter than federal environmental rules or laws
• Banking on the fact that the state DOT is not listed in the law as an environmental agency, Gov. Cooper's Jan. 7 executive order to transform the state's entire transportation sector would have the DOT codify stricter environmental rules adopted from California
• In no way could such a gambit be what legislators intended by the "no more stringent" law

    With a given law, sometimes clever hucksters, devious minds, and malicious enforcers and officials can twist "legal" implications out of it that clearly were never intended. The bigger the gulf between the obvious intent of the law and the perversion of it, the worse the outcomes for people affected by it, especially perceived outsiders, and the bigger the unfair benefits for well-connected insiders.

    For example, imagine the idea that the First Amendment doesn't really protect people's religious freedoms, free speech, and more against intrusions by governments in general, but instead it only protects them against direct acts of Congress, since it begins "Congress shall make no law." Or the argument that the Second Amendment doesn't actually protect people's right to self-defense or include firearms not known in the eighteenth century, but instead covers only people in a "militia" that is "well-regulated" by the government.

    Look at what Gov. Roy Cooper twisted out of the Emergency Management Act (which has been amended, though the changes don't take effect until next year). The law never anticipated unilateral rule by the governor under a perpetual "State of Emergency" (closing in on two years now) or that it would be kept in place for the express purpose to "draw down federal funds." Only by a deliberate, and in my view malicious, but at the very least self-serving misreading of the EMA was such a terrible power grab made possible.

    He also set a pattern. Cooper will issue an emergency order to force major economic disruption on North Carolinians to serve partisan purposes and special interests, regardless of the law. This intent is on display in his Jan. 7, 2022, executive order to change the economy of the entire state.

    "No more stringent" law: State environmental agencies cannot impose environmental rules harsher than the federal government's unless the legislature directly authorizes them

    In 2011, the General Assembly passed a major regulatory reform to protect North Carolinians from state agencies going it alone to impose stricter, harsher, more expensive, and more disruptive environmental regulations on them than what the federal government already does. This reform, known as a "no more stringent" law, does not prevent the legislature from enacting stricter environmental laws and having state agencies craft the rules to follow suit. Legislators merely retain their constitutional duty to enact laws; remember, an agency crafts rules that carry the force of law using authority delegated to them by the legislature.

    Under the title "Limitation on certain environmental rules," the law begins: "An agency authorized to implement and enforce State and federal environmental laws may not adopt a rule for the protection of the environment or natural resources that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule."

    The intent of the law is clear: the General Assembly wants state agencies to stay in their lane when it comes to crafting environmental regulations. Agencies adopt rules in accordance with state and federal laws; they are not to go beyond federal law unless and until the legislature authorizes them by passing a stricter state law. The "no more stringent" law is itself a safeguard against bureaucrats pretending to find "authorization" in state law that isn't there to justify their overregulation.

    Nevertheless, anyone familiar with Cooper machinations can already see an "in." The law is simply too precise in describing an agency. What about an agency that is more about doing something other than specifically implementing and enforcing state and federal environmental laws? A-ha!

    Worse, the law lists nine such state agencies by name. The North Carolina Department of Transportation (DOT) is not among them. A-ha!

    Devious intent: To impose stricter environmental rules without the legislature acting, let's use the DOT instead

    As discussed in a previous brief, Cooper's EO seeks to use the DOT as the vessel for implementing and writing into administrative code environmental goals from California. DOT would consult with several other state agencies to produce a "Clean Transportation Plan" to emphasize "near-term action" (rules that can be rammed through as soon as possible) for "decarbonizing the transportation sector." Importantly, the order states:

    The Clean Transportation Plan shall include a focus on transitioning Medium- and Heavy-Duty Vehicles to ZEVs, informed by North Carolina's participation in the Multi-State Medium- and Heavy-Duty Zero-Emission Vehicle Memorandum of Understanding.

    That "Memorandum of Understanding" is with California to align state regulation of trucks and buses with California's as well as promote sales of electric vehicles and depress sales of conventional, gasoline-powered vehicles, ostensibly based on reducing greenhouse gas emissions. Gov. Cooper and a handful of other Democratic state governors have signed it.

    Importantly, California is allowed under the Clean Air Act to impose stricter regulations of vehicular emissions than the federal government, and other states are allowed to adopt and enforce California's standards.

    In no way did the General Assembly, in passing the "no more stringent" law to prevent a state environmental agency from adopting any environmental rule that "imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule," intend for the stricter rules to be adopted by the DOT instead - or for the governor to outsource our standard-setting to California bureaucrats.

    What can be done?

    Here are several ways that can be used alone or, preferably, in combination to stop the Californication of North Carolina's administrative code, transportation policy, and economy:

• People can file objections with the Rules Review Commission to the rules produced by this plan. Ten objections are enough to put a rule on temporary hold in case the legislature would choose to review it. The General Assembly can then vote to disapprove of any agency rule that goes beyond their legislative intent.
• The General Assembly can broaden the "no more stringent" law to reflect its clear intent. The legislature can amend the law to forbid any agency from adopting more restrictive rules than imposed by the federal government, a reform the John Locke Foundation has long promoted.
• The General Assembly can adopt legislative ratification of costly rules, which is a highly regarded "rules throttle" that has been working in Florida since 2010. Under this law, any agency rule that would have a large impact on the state's economy could not take effect unless and until the legislature voted to allow it. (Rules based on "decarbonizing" an entire, major sector of the economy, shipping and all, would certainly qualify.)
• The judiciary can uphold the North Carolina State Constitution, especially the sovereignty of the people against an out-of-control executive and the legislative power of the General Assembly against bureaucratic usurpation.