We sort out the latest coal ash pollution developments, plus other news, this week in CIB:
Judicial Watch: Emails Display Chain of Collaboration, and Stalling Continues
One state court has already ordered Duke Energy to take “immediate action” to clean up its coal ash pollution. At the same time, a federal grand jury is taking evidence for a potential criminal prosecution of an unspecified “suspected felony” involved in the relationships between Duke and state regulators.
While the judicial system deliberates, we’re beginning to see publicly part of the chain of collaboration between the regulated industry (Duke) and the state regulators (NC Dept. of Environment and Natural Resources, DENR) that contributed to setting up the current mess. The Southern Environmental Law Center (SELC) released to the media last week a series of email exchanges between representatives for Duke and DENR, dealing with the coal ash cases. The messages were obtained in response to discovery requests made as part of litigation to force the state to more rigorously enforce pollution control laws against the coal ash ponds.
SELC’s Derb Carter described the correspondence as “clearly showing how Duke and DENR coordinated the filing of the state lawsuits that obstructed our [conservation groups’] lawsuits.” The emails also show what appears to amount to Duke dictating the terms of its settlement with DENR. The DENR enforcement cases–filed against Duke only in response to SELC’s notices that private actions were about to be initiated against Duke–originally resulted in penalty levels barely registering as slaps on Duke’s multi-billion dollar wrist, and no orders to clean up the pollution. More here.
Also last week, Duke Energy President/CEO Lynn Good wrote to Gov. Pat McCrory and DENR Secretary John Skvarla, outlining Duke’s latest proposed response to the coal ash calamity and continuing dangers. Good’s letter lays out a proposal to clean up pits at six of its plants over a 54 month period–and a ‘we’ll get back to you’ on the other sites.
Duke’s proposal clearly falls short of fulfilling the State Superior Court order issued less than two weeks ago, ordering “immediate action to eliminate sources of contamination” of groundwater at 14 coal-fired power plants around the state. Instead, Duke has asked the court to hold up on enforcement of its own order (a request which SELC has pledged to fight).
Even DENR Secretary Skvarla called Duke’s plan “inadequate”. More here.
Of course, Skvarla and the McCrory administration may be looking nervously over their shoulders at the other developing judicial situation, this one on the criminal side of the courts. While there’s no law against negotiating easy deals with polluters in a vacuum, it’s not legal to do so in return for past or future favors or gifts. In the other judicial development last week, the federal grand jury probe into the relationship between state regulators and Duke continued to expand. More here.
Whatever produced it, we’ve seen the calamitous results of DENR’s easy deals with Duke. What we haven’t seen yet from either Duke or DENR is the badly-needed comprehensive plant to fix the mess.
Legislative Watch: Legislators Call for Cleanup
One path to cleanup was proposed last week by Democratic leaders in the N.C. General Assembly. Seven state House and Senate members, representing their party caucuses, unveiled the details of legislation which would mandate cleanup specifics, including assigning the obligation for payment to Duke Energy.
Rep. Pricey Harrison (D-Guilford) was the lead author of the legislation, which would do the following:
- Require Duke to close and move all 33 coal-ash ponds at 14 plants to lined dry landfill storage away from water sources.
- Direct Duke to provide a cleanup plan for its Dan River ash spill.
- Specify that Duke pay for the costs of all the cleanups, without including any of those costs in expenses to be recovered from electric ratepayers.
- Establish standards for closing and monitoring the existing pond sites.
- Establish standards for new utility-owned lined landfills.
- Repeal a provision approved by the legislature last year, which allows companies to have contaminated groundwater up to their property line.
- Restore funding for DENR staff to monitor coal ash sites.
- Direct the legislature’s Environmental Review Commission to study the safety of using coal ash in construction uses such as fill dirt for road beds.
Harrison has previously attempted to pass legislation to resolve the coal ash issue without success. Among other legislators supporting this latest proposal were Sen. Mike Woodard (D-Durham) and Rep. Paul Luebke (D-Durham). The Democrats invited support from legislative Republicans as well.
However, Republican leaders’ immediate responses were not enthusiastic. A spokesperson for House Speaker Thom Tillis (R-Mecklenburg) declared that the House “is not going to offer a knee-jerk reaction on this important issue”. Supporters of the proposal pointed out that a plan to implement the approach which conservation advocates have been seeking for years hardly qualifies as “knee-jerk”.
Administrative Watch: Who Will Pay for Cleanup?
While all parties are debating what exactly will be done to clean up existing coal ash pollution and prevent future disasters, another key question remains unsettled. Who will pay the costs?
Duke’s opening bid on this question is to offer to pay for the cleanup costs of the Dan River spill–but to expect ratepayers to cover the costs of cleaning up the other coal ash pits. That brings howls from consumer advocates, who believe that Duke stockholders should have to cough up the cash required out of their return on investment.
Gov. Pat McCrory says that “politics” should be kept out of the decision and that the state Utilities Commission should decide who pays. However, the cynical might conclude that the governor already knows who that process will favor (his former employer Duke). James McLawhorn, head of the Electric Division of the Utilities Commission Public Staff, forecast his conclusion on the matter in a conversation with a reporter: “Because that ash was created over decades for the generation of electricity, we do believe that ash-pond disposal costs are ultimately a part of our [consumer electric rates] cost structure.” More here.
In contrast, N.C. Attorney General Roy Cooper and some legislative leaders of both parties argue that ratepayers should not be expected to cover the cleanup costs of the ash ponds. Advocates point out that Duke has continued to operate and add to their wet unlined coal ash ponds while other utilities have moved to shut theirs down.
We can anticipate a long and vigorous debate on this question. Ultimately, the decision will be determined in large part by who is in office when the call is finally made.
Executive Watch: McCrory Points Ashy Finger
It seems increasingly clear that the coal ash controversies are creating a drag on public perception of Gov. McCrory’s job performance. In a poll from last week, only 30% of voters approved of his handling of the coal ash spill, while 44% disapproved. More here.
Under such circumstances, McCrory’s political advisers must be cringing following the governor’s decision to directly engage state Attorney General Roy Cooper on coal ash. In responding to a reporter’s question in Charlotte last week, McCrory criticized Cooper for calling for cleanup of the ash pits and against charging electric customers for the costs (even though both of those stands are popular with the public). More here.
Normally, politicians running for office (in McCrory’s case, re-election in 2016) try to avoid engaging their anticipated opponents on issues in which the opponent’s position is publicly more popular. Why call more public attention to a matter in which your stand is unpopular and your challenger’s stand is not?
This appears to be the latest example (this time on a key environmental debate) in which the governor’s tendency to go off-script is causing headaches for his staff.
Campaign Watch: Hagan Will Headline Green Tie
NCLCV is pleased to announce that its 2014 Green Tie awards dinner will feature Sen. Kay Hagan as its principal speaker. Green Tie is NCLCV’s annual awards event to recognize state legislators and other leaders who work to protect North Carolina’s natural resources and quality of life.
As a U.S. Senator, Hagan has advocated for public lands, cosponsoring the Land and Water Conservation Authorization and Funding Act of 2013, introducing bipartisan legislation to protect lands around the Blue Ridge Parkway, and sponsoring the Community Parks Revitalization Act to increase green spaces in economically distressed areas. She has also consistently opposed legislation to block the EPA from reducing carbon and mercury pollution, and advocated for clean energy and renewable energy sources. Hagan has earned an 84% lifetime score on LCV’s National Environmental Scorecard.
Hagan recently joined in the extended U.S. Senate floor debate on climate change, including these remarks: “In 2012, North Carolina experienced a total of 40 broken heat records, four broken snow records, 13 broken precipitation records, and 19 large wildfires…This extreme weather doesn’t just jeopardize the beauty of our coastline or put our forests at risk of wildfires. It affects our economy and it impacts people’s daily lives…We are seeing the very real impact climate change is having on my state and its economy today. And in the absence of action, this extreme weather is here to stay…This current path is unsustainable, and we must take steps now to slow and stop the effects of climate change.”
During her previous tenure as a member of the North Carolina State Senate, Hagan cosponsored the Clean Smokestacks Act, which is reducing smog and acid rain pollution from coal-fired power plants. She also supported energy innovation, including working on legislation which ultimately produced North Carolina’s renewable energy standard for electric utilities.
The Green Tie 2014 event is scheduled for Tuesday, May 27, 6-9 p.m. at the Raleigh Marriott City Center. More details can be found here.
That’s our report for this week.
