by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
On Jan. 7, Gov. Roy Cooper announced a sweeping executive order whose aims included no less than to change the economy of the entire state. If the governor had such power, then this order would portend severe disruptions in people’s lives.
Cooper’s order states, among other things, that “all levels and branches of government, businesses, and residents must take significant action to achieve the goals outlined in this Executive Order and Executive Order No. 80” — everyone must comply! For what purpose? “to decarbonize all sectors of the economy and avoid the worst impacts of climate change, while taking full advantage of the economic benefits associated with” — and here it goes — “transitioning to a clean, equitable economy.”
Fortunately, the governor does not have such power. Perhaps two years of thinking a virus obeys his dictates and of disordering the economy and people’s lives by issuing extreme emergency dictates in deliberate violation of the state’s Emergency Management Act has indelibly warped his thinking about the actual powers of his office. The state’s political media dared not cause him to rethink his wild misconception; they were far too busy ingratiating themselves to retain the privilege of being able to phone in fawning questions to virtual press briefings. But even Cooper’s own wording reveals the weakness behind the rhetoric: “all levels and branches of government, businesses, and residents must take significant action to achieve the” — what’s the next word? — “goals.”
A politician’s goal is not a citizen’s legal obligation, bluster however he will. A Jan. 19 letter to Cooper by members of a particular branch of government, the General Assembly, repeatedly stressed that Cooper’s executive order is “legally unenforceable.” In keeping with their constitutional duty as representatives of the people (they may be called “residents” in Cooper’s order, but the people are recognized in the North Carolina State Constitution as the very origin of government in whom all political power is vested and derived from), the legislators asked several very pointed questions about the governor’s goals.
The letter, written by Sens. Vickie Sawyer (R-Iredell), Tom McInnis (R-Richmond), and Paul Newton (R-Cabarrus), began by citing the governor’s “lengthy good-faith negotiations with the legislature” that led to the passage of House Bill 951, which “put into statute legally enforceable carbon emissions reductions and required the reductions to be achieved in the least-cost manner while also maintaining or improving reliability for North Carolinians.”
As discussed here, while that new law makes higher electricity costs inevitable for North Carolinians, there is one way it can stave off worse rate hikes and maintain reliability: “only by strict adherence to the law’s text” (emphasis in original).
The senators wrote that the good-faith negotiations on HB 951 were upended by Cooper’s “legally unenforceable” order, which “confuses the public and appears to shift the goalposts by purporting to establish new emissions reductions goals.” The order immediately abandoned strict adherence to the law’s text, which now seems to have been the governor’s intent all along. As they wrote, “Your new goals, which you announced without consultation with the negotiators who worked with you for many months to develop House Bill 951, do not have force of law.”
The Cooper administration’s response to this letter came not from the governor. Instead, the response was handled by Dionne Delli-Gatti in her role as “North Carolina Clean Energy Director” for the governor’s office.
In 2021 Delli-Gatti became the first and only Cooper nominee to be rejected by the General Assembly after a disastrous hearing over her nomination for head of the Department of Environmental Quality in which she admittedly could not articulate the governor’s position on the critical issue of expanding natural gas in North Carolina. Cooper created this role for her out of the former State Energy Director position.
With respect to the issue of the order’s legal unenforceability, brought up nine times in the senators’ letter, the Cooper administration’s position seems to be to ignore the question altogether. Writing for the governor, Delli-Gatti’s Jan. 24 response studiously avoided the issue of legal unenforceability.
The senators’ letter repeatedly stressed (nine times) that Cooper’s executive order is “legally unenforceable.” The Cooper administration’s response studiously avoided that issue.
The closest the Cooper administration’s response came to addressing that matter was to say the governor’s order “does not modify or attempt to modify any of the components of HB 951.” Doesn’t it?
The law states in Part 1 the following (emphasis added):
The Utilities Commission shall take all reasonable steps to achieve a seventy percent (70%) reduction in emissions of carbon dioxide (CO2) emitted in the State from electric generating facilities owned or operated by electric public utilities from 2005 levels by the year 2030 and carbon neutrality by the year 2050.
This part of the bill places great emphasis on adhering to the “least cost path to compliance” (the phrase “least cost” appears four times), and it also stresses being able to “maintain or improve upon the adequacy and reliability of the existing grid.” Those boundaries, a watered-down borrowing from longstanding state law governing electricity provision, must be strictly honored or else North Carolina electricity consumers, from poor families to industrial customers, would have no protection from runaway price hikes and flickering service.
Here’s all we get on this matter from Cooper’s order (emphasis added):
The State of North Carolina will strive to accomplish the following:
a. Reduce statewide GHG emissions to at least 50 percent below 2005 levels by 2030 and achieve net-zero emissions as soon as possible, no later than 2050
Where the law calls for a 70% reduction in emissions by 2030 from electricity generating facilities, staying within the critical boundaries of least-cost and grid adequacy and reliability, the order seeks a 50% reduction in emissions “statewide” with no mention of least-cost or grid adequacy and reliability.
The Cooper administration’s response to those glaring differences is to say the order “does not modify or attempt to modify” the law. The only way that can be true is if the governor has indeed set a legally unenforceable goal that doesn’t and cannot alter the actual law.
But if Cooper can get policymakers and the people they serve to believe that his goals have the force of law, then it wouldn’t matter. It is a tactic used by Pres. Joe Biden: If you want to do something that’s outside the legal boundaries of your office, try it anyway because people might be too tired or disinterested to fight it.
So it was not only right and proper but vitally important that Sens. Sawyer, McInnis, and Newton exposed Cooper’s order for lacking “the force of law.”
The senators also asked several questions pertaining to the governor’s order regarding “transportation, affordability, and energy generation.” Subsequent briefs will examine those issues in more detail.