Breaking: Federal Judge dismisses Duke Energy’s attempt to forum shop N.C. coal ash case

A federal court judge ruled in SELC’s favor today when it dismissed Duke Energy’s attempt to “forum shop” a coal ash case in Virginia, rather than in North Carolina where the pollution occurred.

Duke Energy is desperate to avoid justice in North Carolina, where its companies have pleaded guilty to coal ash crimes and where its unlined leaking coal ash pits pollute rivers and drinking water supplies,” said Senior Attorney Frank Holleman. “It is well past time that Duke Energy stop engaging in legal shenanigans and start removing its polluting coal ash from all its dangerous pits across North Carolina.

In its ruling, the United States District Court for the Western District of Virginia dismissed Duke Energy’s attempt to preempt the Clean Water Act suit filed in North Carolina for Duke Energy’s coal ash pollution at its Roxboro plant in north central North Carolina. On behalf of the Roanoke River Basin Association, in March 2016 SELC sent the required 60-day notice under the Clean Water Act of intent to sue Duke Energy for its Roxboro coal ash pollution. On the 59th day of the 60-day period, Duke Energy filed this action in Virginia, attempting to avoid being held accountable in U.S. District Court in North Carolina. SELC subsequently filed the Clean Water Act enforcement action against Duke Energy in U.S. District Court in Greensboro, as required by the Clean Water Act. Duke Energy had claimed that its Virginia suit pre-empted the North Carolina enforcement action.

The Virginia federal court held that Duke Energy had violated the Clean Water Act by filing suit in Virginia, rather than in North Carolina where the pollution occurred.

In addition, the court states that it:

will not permit this suit because Duke Energy appears to be engaging in forum shopping and a ‘race to the courthouse.’ The procedural posture of this case indicates that [Duke Energy] has attempted to avoid litigating these same issues in the MDNC [the North Carolina federal court].

The court noted the recent rulings of the North Carolina federal court refusing to dismiss citizen enforcement actions against Duke Energy for its coal ash pollution, and stated that “[t]he fact that Duke Energy both knowingly avoided litigation in the MDNC and had a strategic reason to do so gives rise to the concern that it is improperly using the Declaratory Judgment Act to engage in forum shopping.”

The Virginia federal court concluded that “[e]ntertaining the suit would permit an improper race to the courthouse in order to engage in strategic forum shopping, and would run contrary to the plain terms and policy of the Clean Water Act.”