Did N.C. Regulators Help Duke Energy Escape Environmental Fines?   Leave a comment

Uhh..is the Pope Catholic?

News broke last week that Duke Energy and its North Carolina regulator had worked together to minimize penalties the utility would have to pay for leeching chemicals into the drinking water. And this was before a coal ash spill last month dumped thousands of tons of poisonous coal slurry into the Dan River.

But these emails are just the latest evidence of a problematic coziness between the politically influential utility and the North Carolina Department of Natural Resources (DENR).

In this case, a coalition of environmental groups headed by the Southern Environmental Law Center sued Duke Energy for violating the Clean Water Act. The groups hoped to bring Duke before a federal court, but DENR intervened, filing its own lawsuit in a state court so that it could control the outcome. The result: Duke was fined $99,000 — a negligible sum for a company with an operating revenue of $19.6 billion in 2012.(Moyers & Company via Crooks & Liars)

What happened here is probably the one cruel part of the Clean Water and Clean Air Acts, namely what, for lack of a better word, could be described as ‘state preemption’. Basically, as the law is written, from the moment an environmental lawsuit is filed (such as the one above), the state where the alleged violations occurred has 60 days to intervene in state court; otherwise, the case goes before a federal court. In the case above, the state environmental agency, DENR, intervened right before the 60-day cutoff, thus ‘preempting’ the federal case and bringing the case into state court, where the state basically gave Duke Energy a slap on the wrist.

If you’re thinking what I’m thinking, read on…

Internal emails the [Southern Environmental Law] center released include one from an NC Department of Justice lawyer in March of last year, seven weeks after the law center had filed a 60-day notice of its intent to sue Duke.

The lawyer wrote that she needed to learn under what corporate name the state would file its own lawsuit against Duke. Duke merged with Progress Energy in July 2012, combining two fleets of coal-fired power plants.

“I need to check with (DENR general counsel Lacy Presnell) about how Duke wants to be sued,” she wrote.

The next day, according to the emails, the same lawyer wrote Presnell: “I need to know from you if Duke is expecting us to sue them or Progress.”

DENR spokesman Drew Elliot said he didn’t know whether Duke asked regulators to sue.

“But the point is, Duke is not our legal counsel,” he said. “We had a choice to make: Do we enforce the Clean Water Act, or do we let a citizens group enforce the Clean Water Act? There was only one choice, and that’s what we did.”(Charlotte Observer)

Now, here’s the rub in the above quote…in most places, the state’s environmental regulators are, in theory, supposed to work alongside and/or with environmental watchdog groups…however, here in the Old North State, the state’s regulatory agency of note – DENR – has a not-so-aboveboard relationship with the companies they’re supposed to regulate, namely Duke Energy.

Now, that’s bad enough in terms of regulatory coziness with the companies they’re supposed to be regulating…then this happened:

But then disaster struck. A pipe running under a 27-acre toxic waste pond collapsed and poured — by company estimates — 39,000 tons of coal ash mixed with 27 million gallons of contaminated water into the Dan River, which serves as a source of drinking water for a number of towns and cities. It was the third worst spill of its kind in US history.(Crooks & Liars)

Moyers & Company have been following the whole sordid mess of how a perfect storm of dark money interests, conservative lawmakers and various corporate-lef interests have combined to roll back policies and laws that have long benefitted the people of North Carolina; it’s well worth going over there and watching. It’s also a reminder that elections have consequences; I, for one, just wish that I had known a lot of this before voting for Pat McCrory back in 2012…

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Posted March 18, 2014 by Matthew in Uncategorized

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