N.C. agency appeals court ruling allowing it to better regulate coal ash

Two months after a pond of pollutants at a defunct Duke Energy plant in North Carolina spilled thousands of gallons of coal ash into the Dan River, coating the riverbanks in a “toxic soup” 70 miles long, environmental groups say the state is reneging on its promise to hold the nation’s largest energy company responsible for its actions.

The North Carolina Environmental Management Commission (EMC), a 15-member panel appointed by the governor and state legislators to set environmental management policies, has appealed a judge’s ruling that would have given the state’s environmental regulators greater ability to force Duke to protect other rivers from coal ash.

The appealed decision, issued by Superior Court Judge Paul Ridgeway on March 6, would have allowed state regulators to require Duke to immediately clean up coal ash ponds they deemed a threat to waterways. North Carolina is home to 14 of Duke’s ash ponds — large, unlined pits which are filled with water, ash, and toxic byproducts of coal production, and which are often located near rivers.  

Environmental groups said by appealing the ruling, the EMC is opening itself to suggestions that it is not committed to better protecting North Carolina’s environment.

“It seems unprecedented that an environmental commission has asked the state to appeal a ruling that gave it more authority,” said Amy Adams, the North Carolina campaign coordinator with environmental nonprofit Appalachian Voices. “To appeal a ruling that gives you clear authority to help clean up pollution seems appalling.”

Adams and other environmental leaders said they were taken aback by the decision to appeal, which was announced late Monday, but not surprised.

North Carolina has a storied history with Duke Energy.

While Gov. Pat McCrory’s administration took a tough tone with Duke after the Feb. 2 coal ash spill, environmentalists say McCrory and his regulators maintain close ties to the energy company, and therefore are afraid to properly regulate it.

McCrory worked for Duke for nearly 30 years before leaving the company to run for governor. The company has also given $300,000 to McCrory and over $700,000 to the Republican Governors Association, which supported McCrory, since 2008, according to campaign finance filings and Democracy North Carolina.

Last year, McCrory appointed an entirely new board to the EMC, a move that activists said gave the board almost no independent decision-making power.

When reached for comment, EMC chairman Benne Hutson said he had recused himself from all decisions relating to Duke because his law firm has represented the company.

What’s more, the state agency that carries out environmental regulations — the Department of Natural Resources — attempted to settle with Duke over previous coal ash violations for under $100,000 last year, a decision many called a “sweetheart deal.”  The agency revoked the offer for settlement last month after intense media scrutiny and pressure from activists.

The state is now under federal investigation for its relationship with Duke.  But after the February spill, some hoped that relationship would change.

They say Monday’s notice of appeal by the EMC shows that, at least for now, it hasn’t.

“The tone the state has been trying to take with the public has been striking. It’s been a story of enforcing the law,” said D.J. Gerken, a lawyer with the Southern Environmental Law Center, which has spearheaded suits against Duke in the past.

“That’s why I was very surprised….I guess the saga continues.”