From Courts to the Environment, Sununu Stands to Make His Mark Through Nominations

Jan 4, 2017

New Hampshire’s governor doesn’t have a whole lot of executive power, at least compared to peers in other states. But one of the few ways a governor can exert his or her influence is through nominations to fill open seats across state agencies.

Once Governor-Elect Chris Sununu takes office, he’ll have an opportunity over the course of the next two years to pick people to fill dozens of posts — ranging from a deputy agricultural commissioner to new members of the ballot law commission or the State Historical Resources Council.

A few high-profile seats are poised to see quite a bit of turnover under Sununu’s tenure. Here’s a look at some of the issues that could be shaped by Sununu's nominees in the years ahead.

THE COURTS

Chris Sununu will be in the rare position of potentially nominating not just one but two new justices to the state’s highest court. For comparison: Sununu’s predecessor, now-Sen. Maggie Hassan, didn’t get to nominate any.

The justices, unlike a lot of other state-level positions, aren’t subject to fixed-length terms — instead, once nominated, they get to serve until they’re 70 years old.

Two of five justices are on track to retire during Sununu’s term: Associate Justice Carol Ann Conboy (July 2017) and Chief Justice Linda S. Dalainis (October 2018).

A number of cases come before the court each year, but there are a few high-profile cases on deck for 2017, including a dispute over the Northern Pass project and a case involving the distribution of state surplus funds through the Local Government Center. Also pending before the court is an appeal in a criminal case involving a mother charged with murder in the death of her 2-year-old daughter, one of several that have prompted heightened scrutiny around New Hampshire’s child protection services.

Former State Supreme Court Justice and Congressman Chuck Douglas, who's also served as a counsel to the Legislature, says the current court has been less likely to take actions to influence policy through its rulings — at least compared to past courts, like the one that oversaw a sweeping ruling on the state's school funding formula in the Claremont case.

“I would think Republican appointees, no matter what party they are or background, would tend to be less likely to be expansive of the judicial role in something most people would feel is a legislative matter,” Douglas said. “I can see that court would be a little less open to sweeping pronouncements and draconian orders.”

When it comes to selecting judges, Sununu told the Concord Monitor he would continue the practice of relying on input from a bipartisan Judicial Selection Commission. Sununu previously told the Monitor that the commission “will not be [his] only resource in how [he] choose[s] judges.”

“I would look to my advisors, I would look to the local communities, I would look to the legislature and I would get the input from a variety of folks, a much bigger swath of people,” Sununu said in August.

THE JUSTICE DEPARTMENT

Attorney General Joe Foster’s term is set to expire at the end of March. Foster, a Democrat, was appointed by Sununu’s predecessor — and it’s all but certain that Sununu would want his own pick in the role, rather than reappoint.

A lot of the work done by the attorney general’s office is behind-the-scenes, not exactly super interesting. Ovide Lamontagne, a former Republican gubernatorial candidate and an attorney with the Bernstein Shur law firm, described the role of the attorney general  as “the managing partner of the state’s law firm.”

“It’s very important that the next attorney general looks at the operations of the Department of Justice, the priorities of the cases that the attorney general’s office would handle in a way not unlike a law firm serving a corporate client would,” Lamontagne said. “And I’m not suggesting that hasn’t been the case, I’m just suggesting that would be an opportunity for a new attorney general appointed under a new governor to take a look at the operations  of the office and make an assessment as to whether or not the right resources are deployed for the right matters.”

On the more forward-facing side of the role, the attorney general can really have a lot or a little influence, depending on how active he or she decides to be in defending existing laws that are challenged or getting involved in lawsuits against the federal government or big companies.

Foster, for example, chose to launch a major investigation into marketing practices employed by large opioid companies.  He also declined to defend part of the state’s school funding law when it was challenged in court, a move that caused some frustration among lawmakers who felt he was shirking his duties to defend the law as it sits on the books.

Both of those cases illustrate the degree to which an attorney general’s discretion can come into play on issues that could, in turn, affect other policy areas.

ENERGY/THE ENVIRONMENT

Tom Burack, who led the Department of Environmental Services for more than a decade, announced plans last year to step down from his role. His last day was Jan. 2, and Assistant Commissioner Clark Freise is now temporarily serving as acting commissioner until Sununu makes his pick.

While the environmental commissioner doesn’t necessarily make policy, he or she does have a big influence over how the state deals with everything from waste management to rising sea levels to the effects of the ongoing drought conditions. Among the issues on the department’s plate:

  • Water Quality: DES has been the leading agency responsible for managing the state’s response to PFOA contamination that surfaced last year in Southern New Hampshire, as well as other contamination issues elsewhere. Water quality issues —  in general — will require a lot of attention from whoever’s in charge next, as it becomes more challenging for local communities to keep up with the costs of maintaining their existing water systems.
  • MTBE Money: There’s also an open question of how the state will distribute the millions of dollars it received as part of a big settlement with Exxon over groundwater contamination. An advisory commission will offer some input on how to distribute the money, but deciding exactly how to make use of that windfall will be a big item on the next commissioner’s to-do list.
  • Climate Change: Burack played a leading role in developing the New Hampshire Climate Action Plan a few years ago, and observers say he took an active approach to mitigating the effects of climate change in general.

A new commissioner could, for example, take a different approach in advocating on issues like New Hampshire’s continued involvement in the Regional Greenhouse Gas Initiative (“RGGI”) and the Electric Renewable Portfolio Standard.

Sununu has signaled that he’d be open to having New Hampshire leave RGGI, but only if New Hampshire didn't do it alone.

When asked about climate change during a gubernatorial debate, Sununu said he was concerned about "all this regulation that pushes down on businesses and pushes down on individuals" — so it will be worth paying attention to whether his environmental pick reflects this kind of philosophy, too.

Outside of naming a new environmental commissioner, Sununu will also have his pick of a leader for the Office of Energy and Planning, which is housed within the governor’s office. While campaigning, Sununu talked up a desire to see New Hampshire come up with a long-term energy strategy — something outside observers are now hoping his administration follows through on.

“We know that energy, both energy planning and energy siting and the cost of energy is a leading issue for both business and environmental organizations and residents of the state — so something the state really needs is a forward-looking long-term energy strategy and energy plan,” said Jim O’Brien, with The Nature Conservancy. “Governor Sununu talked about that on the campaign trail, and our hope is that it’s a priority for his administration early on.”

EDUCATION

Education Commissioner Virginia Barry’s term was already on track to be up in March, but she just announced within the last week that she’ll step aside at the end of this month.  Additionally, a few slots are set to open up on the Board of Education — two members, including current board chairman Tom Raffio, are also set to have their terms expire this month.

It’s unclear whether Sununu plans to renominate any of the existing commissioners when they’re up for renewal. At one point during his gubernatorial plan he even talked about wanting to “gut” the entire board of education — and while he doesn’t have the power to force out the entire board before their terms are up, that does at least suggest some interest in turning over a new leaf through those nominations.

The board doesn’t necessarily set policy, but it deals with a lot of decisions around how to implement the policies set by the Legislature. It also plays a role resolving disputes between districts and employees, approves charter school applications and generally acts as an oversight body over the Department of Education.

One big project it’s overseeing right now is an ongoing pilot (known as the “PACE” program) that’s meant to cut down on the amount of statewide standardized testing in schools. It’s voluntary, and participating schools are allowed more flexibility to come up with their own ways of measuring how students are learning.

Otherwise, we can expect to see a education officials grappling with ongoing debates around charter schools and school choice in general; a looming shortage of administrators and teachers, especially in math and science; declining enrollment; and the seemingly neverending battle over school funding.

So it’s safe to say the new education commissioner and the board, regardless of who’s sitting on it, will have their hands full these next few years.

Correction: Due to incorrect information provided by the courts, an earlier version of this post incorrectly stated the number of justices on track to retire during Sununu's gubernatorial term. This post has been updated to reflect that two justices are scheduled to retire.