N.C. Supreme Court overturns trial court ruling against state Environmental Management Commission

ncsupct01RALEIGH – In response to a ruling by the North Carolina Supreme Court that sided with a state agency over environmental interests, one of the plaintiffs has accused the government of changing state law to accommodate Duke Energy.

The N.C. Environmental Management Commission, or EMC, had appealed the decision of the Superior Court, which found for the environmental groups and their arguments that Duke Energy must immediately remove coal ash stored in ponds if the state has traced groundwater contamination to the ponds.

Peter Harrison of the Waterkeeper Alliance, one of the plaintiffs, said that the decision “casts a great air of suspicion over the whole judicial process and the whole system of checks and balances in the state.”

While admitting that there was no direct evidence of corruption, Harrison said that there are “plenty of statistics out there to connect Duke Energy’s millions to the Supreme Court, and it’s also a fact that Duke Energy has about a $40 billion stake in matters appearing before the Supreme Court in North Carolina over the last five years or so. I think all of that is potentially relevant to what’s happened today.”

Justice Sam J. Ervin IV wrote the opinion, which overturned the decision and sent it back to the lower court with instructions to dismiss the plaintiffs’ appeal, ruling that the dispute was moot because of the passage of the Coal Ash Management Act. The General Assembly passed the law in August 2014 to provide a process to close all the state’s ash ponds and deal with contamination at the sites.

Duke Energy spokeswoman Erin Culbert said in an emailed statement that “we think the court’s ruling is appropriate, and we are pleased to close this issue so we can continue moving ahead with safely and permanently closing ash basins.”

The case arose from a dispute over the manner in which certain regulatory requirements should be applied to coal ash lagoons that received operating permits before December 1983. Those coal ash lagoons are the 14 unlined coal ash ponds that are located at Duke Energy facilities in the state.

The plaintiffs, the Sierra Club, Cape Fear River Watch, the Waterkeeper Alliance, and Mountaintrue, had argued to the EMC that operators of coal ash lagoons with discharge permits issued before 1984 had to take “immediate action” to eliminate sources of contamination that cause a violation of groundwater quality standards.

The EMC did not agree, and ruled that “immediate action” did not mean immediate elimination of sources of contamination, but immediate action “appropriate to the circumstances evaluated in the context” of the state’s groundwater rules.

When Superior Court Judge Paul Ridgway reviewed the EMC ruling and found in favor of the special-interest groups, holding that “immediate action” must be taken to eliminate the sources of the contamination, the EMC appealed to the Supreme Court and Duke Energy joined in that appeal.

The Supreme Court’s decision held that the coal ash law superseded the EMC’s ruling and that “the evidence before us in this case reinforces our conclusion that this case has been rendered moot as a matter of both law and fact by virtue of the enactment of” the new law.

“This case validates the Coal Ash Management Act as the framework for solving the decades-old problem of coal ash lagoons in North Carolina,” said Crystal Feldman of the N.C. Department of Environment and Natural Resources, which was not involved in the case.

The court seemed to agree, including a footnote in the decision referencing “the detailed instructions set out in the relevant provisions of Chapter 122 for addressing remediation-related issues.”

Harrison was not swayed.

“At the end of the day,” he said, “the result is that the laws of North Carolina have literally been changed to accommodate Duke’s groundwater contamination.”

Full Text of the Court’s Opinion