• Gov. Roy Cooper signed an “Memorandum of Understanding” with California Gov. Gavin Newsom to promote “zero-emissions” trucks and buses
  • Cooper’s recent executive order demands the drafting of an “Advanced Clean Trucks Rule” by the Environmental Management Commission
  • Neither the state constitution nor the Administrative Procedure Act allows a governor to order rulemaking, and the no-more-stringent law would also block this rule, so Cooper would have to persuade the General Assembly to authorize it

Gov. Roy Cooper has an understanding with California Gov. Gavin Newsom. Cooper seems to think this understanding between two imperious Democratic governors is sufficient to force major changes in North Carolina’s economy, including drafting new rules and new programs.

Gov. Cooper is flat wrong. Not only can California regulators not write North Carolina’s rules, but neither can the governor of North Carolina. This brief will discuss that understanding, the governor’s gambit, and the law.

A “Memorandum of Understanding”

On July 10, 2020, Cooper signed on to Newsom’s “Multi-State Medium- and Heavy-­Duty Zero-Emission Vehicle Memorandum of Understanding,” which aimed “to foster a self-sustaining market for zero emission medium- and heavy-duty vehicles” (ZEVs). At the time, Cooper was fresh off imposing his face mask mandate on North Carolinians based on research that, despite his assertions to the contrary, did not support such an extreme executive order. Many of the studies he cited did, however, favor changing Americans’ esteem for individual liberty so as to submit to masking, as they do in China and other Asian cultures. If North Carolinians could be forced to resemble China with mask compliance, perhaps we could be made to resemble California with requiring “zero-emissions” trucks and buses.

Cooper’s “understanding” with Newsom is shared by only 13 other states and the District of Columbia: Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. It featured prominently in his January 7, 2022, executive order aimed at changing the economy of the entire state. A major part of the order was to “Increase the total number of registered ZEVs to at least 1,250,000 by 2030 and increase the sale of ZEVs so that 50 percent of in-state sales of new vehicles are zero-emission by 2030,” which would involve establishing a “North Carolina Clean Transportation Plan.” About that, Cooper ordered:

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. 

Ordering a rule to be drafted

The very first part of Cooper’s October 25, 2022 executive order on ZEVs stated the following (emphasis added):

Section 1. Advanced Clean Trucks Rule

NCDEQ shall establish a North Carolina Advanced Clean Trucks program requiring manufacturers to sell an increasing percentage of MHD ZEVs over time and shall propose that rule for consideration by the Environmental Management Commission no later than May 15, 2023. NCDEQ shall collaborate with local governments, environmental justice organizations, underserved communities, automobile manufacturers, motor fleet owners, electric utilities, the North Carolina Utilities Commission (“NCUC”), public health experts, environmental organizations, and other interested stakeholders in developing the proposed rule and the associated regulatory impact analysis.

This rule, you’ll see, would force truck manufacturers to ratchet up the proportion of trucks sold in the state that are ZEVs, which would consequently mean choking off conventional truck sales regardless of consumer demand. 

Prior to Cooper taking the extraordinary step of ordering the drafting of this “Advanced Clean Trucks Rule” by the Environmental Management Commission, his order justified his authority to do so by protesting too much. Cooper offered an introductory section called “Statutory Authority and Determinations,” which stated:

WHEREAS, N.C. Const. art. III, § I provides that the executive power of the state shall be vested in the Governor; and 

WHEREAS, pursuant to N.C. Gen. Stat. § 147-12(a)(l), it is the Governor’s duty to supervise the official conduct of all executive and ministerial officers; and 

WHEREAS, pursuant to N.C. Gen. Stat. § 143B-4, the Governor is responsible for formulating and administering the policies of the executive branch of the state government.

North Carolina law is clear about rulemaking

But is having executive power and being in charge of executive officers and the executive branch the same as having the power to order specific rulemaking by executive branch agencies?

The North Carolina State Constitution Article II, Section 1 states that (emphasis added) “The legislative power of the State shall be vested in the General Assembly, which shall consist of a Senate and a House of Representatives.” That distinction is important. It means that only the General Assembly can pass legislation.

Legislative power comes into play in North Carolina’s Administrative Procedure Act (APA), which “establishes a uniform system of administrative rule making and adjudicatory procedures for agencies.” In its list of definitions, the APA includes the following (emphasis added):

Rule. — Any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. 

In other words, authority for agency rules originate either from enactments (i.e., enacted legislation) from the General Assembly or from Congress (or, by extension, a regulation imposed by a federal agency). The APA’s definition of a rule makes no allowance for an executive order issued by the governor.

Going further, the APA makes it clear that it’s not sufficient merely for legislation to have been enacted. The law must specifically authorize the rulemaking agency to issue such a rule: “An agency may not adopt a rule that does one or more of the following: (1) Implements or interprets a law unless that law or another law specifically authorizes the agency to do so.” 

Agency rulemaking power is very narrowly defined: “An agency may adopt only rules that are expressly authorized by federal or State law and that are necessary to serve the public interest.” The adverbs are essential; the “only” rules that the APA allows agencies to adopt are those rules “expressly” authorized by legislation passed by the General Assembly or Congress. After passing that hurdle, the rule must also be “necessary to serve the public interest.”

The APA assigns the Rules Review Commission (RRC) to determine whether a rule is legitimate and can be added to the North Carolina Administrative Code as a permanent rule. The very first thing about a proposed rule that the RRC must examine is whether “It is within the authority delegated to the agency by the General Assembly.” (Side note: Gov. Cooper recently withdrew his lawsuit against the RRC, which he tried to say gave “the legislative branch an unconstitutional veto authority over rules and regulations issued by the executive branch.”)

Likewise, if the rule is contested, when the administrative law judge tests whether the rule as applied is “void,” the very first determination the judge must make is whether the rule “is not within the statutory authority of the agency.” (The word “statutory” refers to a statute, which means a law passed by the General Assembly under their exclusive legislative authority in Article II, Section 1 of the state constitution.)

The only time an executive order can be used with regard to rulemaking is this: the governor can use an executive order to speed up the date a rule that had already been approved by the RRC takes effect.

Another reason Cooper’s rule would be illegal

Even if Cooper had the authority to order this “Advanced Clean Trucks Rule” by the Environmental Management Commission, another part of the APA would prevent it. North Carolina’s no-more-stringent law stipulates that (emphasis added):

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. 

One of the agencies to which this law specifically applies is the Environmental Management Commission.

Though it needs to be expanded, the no-more-stringent law upholds Article II, Section 1 of the state constitution. If the General Assembly intended for the agency to create something like the “Advanced Clean Trucks Rule,” then it would have passed a law authorizing it.

Summary

The North Carolina State Constitution obviously would not let state agencies draft rules to suit the desires of another state’s governor. State law makes no allowance for rulemaking by executive order from our governor. Going further, it doesn’t even allow the state’s environmental agencies to craft rules that are stricter than the federal government’s if they lack the statutory authority from the North Carolina General Assembly.

If Gov. Cooper wants to satisfy California Gov. Newsom with an “Advanced Clean Trucks Rule” here, he’ll have to persuade the General Assembly to go along.