Does the Governor of North Carolina have authority to declare a moratorium on issuing permits for new hazardous waste facilities?

Plain-English summary

In 1986 North Carolina was deep into the politically painful problem of siting hazardous waste treatment facilities. The General Assembly had built an elaborate state-level system to push siting forward despite intense local opposition. Local communities, in turn, wanted the Governor to stop new permits altogether while the politics worked themselves out.

The Hazardous Waste Treatment Commission asked the AG: does the Governor have unilateral power to declare a moratorium on hazardous waste facility permits?

Assistant Attorney General Robert R. Reilly answered no, grounding the answer in straightforward North Carolina separation-of-powers doctrine.

The Governor's executive authority comes from Article III of the state Constitution. The Court had explained in State ex rel. Wallace v. Bone, 304 N.C. 591 (1982), citing the Instructions to the Orange Delegation drafting the state's first constitution, that the legislative branch has the power to make laws and provide remedies, and the executive branch has authority to "apply the remedies provided by the law makers in that manner only which the laws shall direct." The executive cannot invent new remedies the legislature did not provide.

The General Assembly had laid out a comprehensive hazardous waste scheme:

• DHR maintains an administrative unit to manage solid and hazardous waste (§ 130A-291).
• The Commission for Health Services adopts hazardous waste rules (§ 130A-294(c)).
• DHR runs the permit system for waste management facilities (§ 130A-294(a)(4)).
• The Governor's Waste Management Board can invalidate local ordinances that obstruct facility construction (§ 130A-293).
• The Hazardous Waste Treatment Commission can site, finance, build, lease, or operate a facility if private industry fails (§ 143B-470.1).
• A statutory time schedule governs the siting and construction of a treatment facility (§ 143B-470.4(b)).
• The General Assembly itself imposed a moratorium, on hazardous waste landfills, until a comprehensive treatment facility is operating (§ 130A-294(h)(1)).

That scheme had two features that mattered. First, it did not grant any branch a general moratorium power on permitting hazardous waste facilities. Second, it pointed in the opposite direction. The legislative findings in § 143B-216.10 declared that "the safe management of hazardous wastes ... and particularly the timely establishment of adequate facilities" was "one of the most urgent problems facing North Carolina." The Governor's Waste Management Board even had the extraordinary power to override local ordinances to keep siting moving.

Layering a gubernatorial moratorium on top of that scheme would have been "inconsistent with" the legislature's choices, the AG concluded. The legislature itself knew how to impose a moratorium when it wanted to; the § 130A-294(h)(1) landfill moratorium was the example. It had not given that power to the Governor.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The North Carolina hazardous waste statutes have been amended substantially since 1986, including reorganization of the Department of Human Resources into the Department of Health and Human Services and the Department of Environmental Quality. The Hazardous Waste Treatment Commission has had a varied institutional life. The separation-of-powers analysis at the core of this opinion remains good law, but a present-day controversy over executive authority over permits would have to be analyzed against the current statutory architecture.

Background and statutory framework

The 1980s hazardous waste siting controversy in North Carolina was one of the era's defining environmental-justice fights. The federal Resource Conservation and Recovery Act required states to provide adequate treatment, storage, and disposal facilities for hazardous wastes generated within their borders. North Carolina, like most states, had to find sites. Local communities, especially in rural counties, organized intensely against being chosen. The General Assembly responded by building a top-down siting structure: the Hazardous Waste Treatment Commission could move forward when private siting stalled, the Governor's Waste Management Board could invalidate local ordinances that obstructed siting, and the Commission for Health Services issued the controlling rules.

The Governor at the time, James G. Martin (a Republican who served 1985-1993), faced political pressure to stop the process. A moratorium would have been a natural tool, but the statutes had no such tool to give. The AG opinion confirmed what the statutory architecture implied: the Governor had no general moratorium power, and the legislature, which had thought carefully about when to impose a moratorium and had imposed one on landfills only, had decided where the moratoriums lived in the system.

The structural separation-of-powers point is broader than hazardous waste. State ex rel. Wallace v. Bone had laid down a strong rule: the executive applies remedies the legislature provides, in the manner the legislature directs. When the legislature has spoken comprehensively on a subject, the executive cannot fill in gaps it perceives, especially in a direction that runs counter to the legislative scheme.

Common questions

Could the Governor refuse to act on permit applications by leaving them in administrative limbo?

The opinion addressed the formal question of whether the Governor could declare a moratorium. A separate question would be whether the Governor's appointees on the relevant boards could slow-walk applications. That kind of de-facto delay would be subject to administrative-procedure rules (§ 150B contested-case provisions, deadlines on permitting agencies) and to the legislative scheme's emphasis on timeliness. A pattern of slow-walking driven by gubernatorial pressure would have raised similar separation-of-powers concerns.

What about emergency executive powers under the Emergency Management Act?

Chapter 166A gave the Governor emergency-declaration authority for natural and man-made disasters. A hazardous waste permit moratorium would not fit the emergency framework: there was no acute disaster requiring emergency response, and the General Assembly had specifically addressed the long-run hazardous waste issue through its own statutes.

Did the General Assembly later give the Governor moratorium authority?

That depends on subsequent legislation. The 1986 AG opinion described the statutory landscape at that time. The General Assembly is free to amend the framework; a present-day question about gubernatorial authority should look at the current statutes.

Could the legislature itself extend a moratorium beyond landfills?

Yes. The legislature can impose any moratorium it wants, subject to constitutional limits. The 1986 opinion was about what powers the Governor had under the existing statutes, not about what the legislature could enact going forward.

Source

• Landing page: https://ncdoj.gov/opinions/health-hazardous-waste-facility-issuance-of-moratorium-by-governor/

Citations

• N.C. Const. art. III, §§ 1-2
• G.S. § 130A-291, § 130A-293, § 130A-294(a)(4), § 130A-294(c), § 130A-294(h)(1)
• G.S. § 143B-216.10, § 143B-470.1, § 143B-470.4(b)
• State v. Warren, 252 N.C. 690, 114 S.E.2d 660 (1960)
• Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709 (1975)
• Adams v. Dep't of Natural and Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978)
• State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982)

Original opinion text

Requested By:

Mr. Tom Karnoski Hazardous Waste Treatment Commission

Question:

May the Governor issue a moratorium on the granting of permits for hazardous waste facilities?

Conclusion:

No.

"The Governor is a constitutional officer elected by the qualified voters of the State. N.C. Const. Art. III, s. 2. The executive power of the State is vested in him, N.C. Const. Art. III, s. 1.

"The State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the Legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society." State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660 (1960). "(A)lthough the General Assembly may not delegate its authority to make laws, it may delegate to an administrative agency the authority to make determinations of fact upon which the application of a statute to particular situations will depend, provided the General Assembly has fixed adequate standards for guidance of the administrative agency." Tripp v. Flaherty, 27 N.C. App. 180, 184, 218 S.E.2d 709, (1975). Similarly, the General Assembly may delegate authority to adopt rules. See Adams v. Department of Natural and Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The separation of powers between the legislative and executive branches of government was discussed in State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982). The Court quoted from the Instructions to the Orange Delegation for the drafting of the State's first constitution:

"Fifthly. That the power of making laws shall have authority to provide remedies for any evils which may arise in the community, subject to the limitations and restraints provided by the principal supreme power.

"Seventhly. That the executive power shall have the authority to apply the remedies provided by the law makers in that manner only which the laws shall direct, and shall be entirely distinct from the power of making laws." (Id. at 597, 82) (emphasis added.)

The General Assembly enacted G.S. 130A-291 which provides in part: ". . . the Department of Human Resources shall maintain an appropriate administrative unit to promote sanitary processing, treatment, disposal, and statewide management of solid waste (which includes hazardous waste)."

"In establishing a (Statewide solid waste management) program, the Department shall have authority to . . . (d)evelop a permit system governing the establishment and operation of solid waste management facilities." G.S. 130A-294(a)(4). "The Commission (for Health Services) shall adopt and the Department shall enforce rules concerning the management of hazardous waste. These rules shall establish a complete and integrated regulatory scheme in the area of hazardous waste management . . . ." G.S. 130A-294(c).

The General Assembly has also established the Governor's Waste Management Board. G.S. 143B-216.10, entitled "Declaration of findings", states in part:

"The General Assembly of North Carolina hereby finds and declares that the safe management of hazardous wastes and low-level radioactive wastes, and particularly the timely establishment of adequate facilities for the disposal and management of hazardous wastes and low-level radioactive wastes is one of the most urgent problems facing North Carolina." (Emphasis added.)

The Board has the extraordinary authority to invalidate any local ordinance to the extent necessary to effectuate the purposes of the hazardous waste management program. G.S. 130A-293.

Also created by the General Assembly is the North Carolina Hazardous Waste Treatment Commission whose "Declaration of findings" is similar to that of the Governor's Waste Management Board. The principal function of the Commission is "to site, finance, build, lease or operate, or oversee a hazardous waste treatment facility if private enterprise fails to do so within a specified time." G.S. 143B-470.1. The time schedule is set forth in G.S. 143B-470.4(b).

The General Assembly has recognized the problem posed by hazardous waste in this State and has enacted an elaborate system to provide for the safe management of hazardous waste. The Commission for Health Services adopts rules necessary to govern hazardous waste facilities. The Hazardous Waste Treatment Commission seeks out private enterprise to construct and operate the facilities. If necessary, the Commission assumes the responsibility. Finally, the Governor's Waste Management Board invalidates local ordinances that obstruct the construction and operation of the facilities. The Legislative Branch has provided the remedy for management of hazardous waste; the Executive Branch has been given the authority to implement that remedy. The remedy not only omits authority to impose a general moratorium on the granting of permits for hazardous waste facilities but is inconsistent with a moratorium. G.S. 143B-470.4 establishes an explicit time schedule for the siting, construction and operation of a hazardous waste treatment facility. In fact, the General Assembly itself has imposed a moratorium, but only on hazardous waste landfills until a comprehensive hazardous waste treatment facility is operating. G.S. 130A-294(h)(1).

Therefore, it is the opinion this Office that the Governor does not have the authority to issue a moratorium on the granting of permits for hazardous waste facilities in this State.

LACY H. THORNBURG
Attorney General

Robert R. Reilly
Assistant Attorney General