Yesterday, Judge George Bryan Collins of the 10th Judicial District heard arguments by the Civitas Institute Center for Law and Freedom (CLF) and the North Carolina Attorney General in Wake County Superior Court. At issue is whether the case of Mr. John J. Woodard against the North Carolina Department of Environmental Quality (DEQ) will proceed to argument on the merits. Mr. Woodard alleges that DEQ’s failure to submit a wind energy facility in Pasquotank and Perquimans Counties to the requirements of state law violated his constitutional rights under Article I § 6 of the North Carolina Constitution, which provides that:
Sec. 6. Separation of powers.
The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.
In Woodard’s complaint, he alleges that DEQ violated the doctrine of separation of powers by de facto legislating away protections from which he would have benefitted. The Attorney General has argued that Woodard’s failure to appeal an earlier decision of the Office of Administrative Hearings (OAH) bars him from seeking a constitutional remedy in superior court. Woodard contends that the OAH ruling merely confirms that his remedy must be constitutional, not administrative in nature. Judge Collins has taken the attorneys’ arguments and written memoranda under advisement, and will issue an order in the coming weeks.
The case is similar to that of Owens v. DEQ, which is proceeding to argument on the merits this spring. There, Jillanne Badawi and Steve Owens — a husband and wife couple — have made similar allegations about DEQ’s failure to protect them from the dangers of industrial wind turbines. CLF defeated the government’s motion to dismiss in their case last December, and is now preparing for a contested case hearing in April.
Joining CLF in both cases is Dr. David Schnare of the D.C.-based Energy & Environment Legal Institute. Dr. Schnare has been admitted on a pro hac vice basis in both cases.