Coastal rules battle between two NC agencies heads to Appeals Court

North Carolina’s second-highest court will hear arguments Thursday in a dispute over 30 government rules targeting coastal North Carolina. The case pits the state’s Coastal Resources Commission against the Rules Review Commission.

The two government agencies disagree about requirements of North Carolina’s Administrative Procedure Act.

A trial judge ruled in favor of the coastal commission in March 2025. The rules commission appealed that decision to the North Carolina Court of Appeals.

Judges John Arrowood, Jeff Carpenter, and Jefferson Griffin will hear oral arguments during a Thursday morning Appeals Court session at the North Carolina Central University law school.

“At its core, this case is about the role of the RRC in the enforcement of the APA’s standards through its review process, as well as whether the CRC (and other administrative agencies) has the statutory authority to flaunt such standards without an express exemption or exception,” RRC lawyer John Branch wrote in an Oct. 13 Appeals Court brief.

The Rules Review Commission, appointed by the General Assembly, reviews state agency rules before they can be added to the state code. In 2013 lawmakers gave the RRC authority to review existing administrative rules every 10 years. It’s a process called “sunset provisions with periodic review.”

As part of a review that started in 2017, the Coastal Review Commission identified 226 rules as “necessary with substantive public interest.” That designation meant that the rules would have to proceed through the RRC’s review process.

RRC staff flagged 30 of the 226 rules in 2022 and 2023. The targeted rules had names such as “Coastal Areas That Sustain Remnant Species,” “Coastal Complex Natural Areas,” “Unique Coastal Geologic Formations,” and “Significant Coastal Archaeological Resources.”

“The objections included that several CRC submissions were policy statements or declarations of policy rather than rules; that numerous provisions were ambiguous, often due to undefined standards such as ‘significant adverse impact,’ vague actors, and open-ended discretion; that several provisions were not reasonably necessary and merely repeated statute without adding implementational content, contrary to § 150B-19(4); and that certain proposals did not comply with Part 2 of Article 2A because the submissions did not meet the APA’s definition of a rule or lacked required procedural content,” Branch wrote in October.

The rules commission eventually adopted its staff’s recommendations and had the rules removed from the state code in October 2023.

The Coastal Resources Commission took that decision to court the following month, arguing that the rules commission acted outside its legal authority. Superior Court Judge William Pittman sided with the coastal commission last March.  

“The RRC is the commission, created by the General Assembly, that is responsible for the review of administrative rules to ensure compliance with the APA prior to their inclusion in the Code,” Branch wrote in October. “The RRC is charged with reviewing rules agencies are seeking to include in the Code and only approving such rules which procedurally and substantively meet the rulemaking requirements of the APA. Such requirements include the APA’s definition of what constitutes a rule versus a policy, the latter being prohibited from enactment through rulemaking.”

The Coastal Review Commission offered a different take in a Jan. 12 brief.

“Contrary to the RRC’s assertion, the CRC does not contend that it is exempt from the requirements of the North Carolina Administrative Procedure Act (‘APA’),” wrote state Special Deputy Attorney General Elizabeth Young. “Rather, as the trial court appropriately found, the RRC’s interpretation of what constitutes and may be implemented as a rule is fundamentally flawed, and the CRC acted well within its authority under the APA and its enabling legislation, the Coastal Area Management Act of 1974 (‘CAMA’) and in the North Carolina Dredge and Fill Law.”

“In granting the CRC’s motion for summary judgment, declaratory judgment, and injunctive relief, the trial court upheld the requirements of the APA and CAMA and restored vital protections to the North Carolina coast,” Young added.

The North Carolina Coastal Federation, working with lawyers from the left-of-center Southern Environmental Law Center, submitted a friend-of-the-court brief on Jan. 17 supporting the state coastal commission.

“When the RRC objected to thirty of the rules on improper grounds and had them removed from the North Carolina Administrative Code, it created gaps in the law and left valuable coastal resources vulnerable to the very activities CAMA was intended to protect,” SELC lawyers wrote.

“NCCF is an advocacy organization that has spent ‘decades’ seeking additional governmental regulation of North Carolina’s coast through, among other things, administrative rules.” Branch wrote in the Rules Review Commission’s March 2 response. The federation’s brief “continues its mission by advocating codification of the Resubmitted Rules into the North Carolina Administrative Code.”

“At its core, NCCF appears to contend that conflicts between the RRC and administrative agencies should always be resolved in favor of agencies if the agencies’ statutes require them to adopt rules,” Branch added. “NCCF’s argument both minimizes the RRC’s statutory mandate to object to agency-adopted rules that fail to comply with the APA, and fails to recognize that after the RRC objected to the Resubmitted Rules, the North Carolina General Assembly, via session law in October 2023, required the RRC to return certain rules to state agencies whose objections by the RRC have not been resolved, with the result being that those rules are removed from the Code.”

“The General Assembly explicitly amended the APA to mandate return of objected-to rules when RRC objections have not been satisfied. That is what happened here,” Branch wrote.

“The RRC appreciates that NCCF is seeking to protect North Carolina’s coast via the CRC’s CAMA guidelines,” he added. “Those guidelines, however, must still meet all of the APA’s rulemaking requirements to be placed in the Code and be enforceable. One hundred ninety-six of the CRC’s rules submitted for readoption met those requirements, were approved by the RRC, and placed in the Code. The remaining thirty Resubmitted Rules did not meet those requirements; the RRC objected to them and returned them to the CRC when the CRC did not satisfy those objections.”

Jon Sanders of the John Locke Foundation supported the 2013 state law that created periodic review of existing North Carolina state regulations.

“State agencies create rules only with the authority delegated them by the General Assembly to carry out a responsibility or task that the legislature first gave to them by passing a law,” said Sanders, director of Locke’s Center for Food, Power, and Life. “Since these rules, also known as regulations, can exceed their intended authority, the legislature also created the law requiring periodic review and sunset of rules. If state agencies are successfully able to use the courts to overturn unfavorable decisions by the RRC, then it would undermine this process and encourage the sort of out-of-control bureaucracy that inspired periodic review and sunset in the first place.”

“Coastal rules battle between two NC agencies heads to Appeals Court” was originally published on www.carolinajournal.com.