Citizen conservation groups are challenging the state’s cave-in to Duke Energy on coal ash and groundwater pollution. This week in CIB.

Administrative Watch: Conservationists Will Challenge ‘Sweetheart Deal’ Slashing Duke Environmental Fine

Take a $25 million fine against Duke Energy for water pollution from coal ash at one power plant. Enter negotiations with Duke over its legal challenge to that fine. Come out of negotiations with a $7 million fine that pre-empts further enforcement actions against pollution from coal ash at 14 power plants across the state.

That’s what the NC Department of Environmental Quality (DEQ) did this month. Given the breathtaking scope of this ‘sweetheart deal’ settlement of Duke’s challenge, it’s no wonder that seven citizen environmental groups last week challenged the deal in court.

“The administration twisted a simple penalty dispute into a bad settlement,” said Southern Environmental Law Center (SELC) attorney D.J. Gerken. For a fine that averages just $500,000 per coal-burning power plant, “Duke Energy bought amnesty for all past, present, and future violations of groundwater law across North Carolina, including at sites that were not even part of this case.”

In its own news release announcing the legal action it filed on behalf of six other environmental groups, SELC pointed out that the settlement “does nothing to clean up groundwater at ten sites where coal ash threatens our waterways and communities.” SELC further noted that the settlement was reached “without the involvement of the citizen conservation groups that have fought successfully for coal ash cleanups.”

More information, a map of the affected coal ash sites, and links to related fact sheets also can be found here.

Judicial Watch: Clean Water Delayed; State Officials Confused?

Less than two months after EPA’s new Clean Water Rule went into effect in most of the country, a federal appeals court has placed it on hold.

The Sixth Circuit Court of Appeals this month stayed (put on hold) the implementation of the rule, pending the court’s review and determination on whether it has jurisdiction to hear a legal challenge to the rule. The court acted in a case filed by a number of states and other opponents of the rule. The decision of the three-member panel of the Sixth Circuit was 2-1 in favor of the temporary stay.

The Clean Water Rule clarifies the definition of “waters of the United States” under the Clean Water Act. It restores most of the scope of protection established for wetlands and streams under federal law prior to two decisions by the U.S. Supreme Court (in 2001 and 2006) which introduced uncertainty into those standards. The clarified rule is especially important in making it plain that small streams and associated wetlands will normally be considered part of the other “waters” to which they are tributary and help protect.

National citizen environmental advocacy groups have largely supported the clarified rule which went into effect in late August. The Natural Resources Defense Council (NRDC) said in a statement released in response to the court stay, “Every major rule delivered by the EPA is guaranteed to face legal challenges. We look forward to making the case in court about the critical public interests at stake. The Clean Water Rule is key to ensuring clean drinking water for one-in-three Americans and protecting essential buffers against flooding. We are confident the courts will find that these are needed safeguards and reject claims the that rule protects too many water bodies from pollution.”

NC Governor Pat McCrory issued a statement praising the court’s decision to put the rule’s implementation on hold, claiming that the rule would harm farmers and “stifle economic development.”

Going beyond McCrory’s general comments, his administration’s Secretary of Environmental Quality, Donald van der Vaart, made more specific assertions of the alleged flaws of the Clean Water Rule. The problem was that some of van der Vaart’s assertions were false. Not false as in consisting of intemperate or overblown rhetoric – false as in specifically and demonstrably untrue.

Van der Vaart claimed, “In the past, puddles that form on a farmer’s land weren’t enough to trigger the federal Clean Waters Act. But with these new rules, those puddles could cause some or all of their land to fall under federal oversight.”

In fact, the Clean Water Rule incorporates a specific exclusion of “puddles” from among the waters which are covered. Agricultural exemptions more generally as well are continued and not narrowed. In the rule itself, and in documents summarizing and explaining the rule, the EPA specifically underscores these and similar points.

The claims by van der Vaart are unfortunately typical of many of the attacks on the Clean Water Rule (and other environmental protections). Opponents will raise arguments designed to frighten farmers, builders, local governments, or other groups. The EPA will act to address those arguments. Despite that, the organized opponents will repeat the discredited arguments anyway.

Honest politics? No. Effective politics in generating fear and confusion? Sadly, often yes. Relatively few members of the general public – or too often, even responsible reporters – will have the technical training, time, and inclination to conduct the detailed research needed to show that a false claim is false.

That means that it’s up to concerned citizen conservation advocates to help hold elected officials and their appointees responsible for their deceptions on the environment.

That’s our report for this week.