News | June 11, 2015

N.C. Supreme Court confirms General Assembly bailed out Duke Energy from groundwater law

Below is comment from Senior Attorney DJ Gerken, who represents conservation groups before the courts, regarding the decision announced today by the N.C. Supreme Court in Cape Fear Riverwatch, Sierra v. North Carolina Environmental Management Commission. The case looked to determine whether state groundwater requirements to “take immediate action to eliminate sources of groundwater contamination” applied to Duke Energy’s coal ash ponds. The state Environmental Management Commission and Duke Energy appealed an earlier Superior Court ruling confirming the state’s ability to require Duke to take “immediate action.”

“This decision confirms that Duke Energy successfully worked the politics of the North Carolina General Assembly to win changes in the law giving it a pass from complying with the same laws North Carolina has long enforced against small businesses and land owners. First, the state joined hand-in-hand with Duke Energy to appeal a court order that confirmed DENR’s power to immediately stop coal ash pollution. Then the General Assembly passed two separate bills for Duke Energy to block a lawsuit filed by the Southern Environmental Law Center on behalf of Cape Fear River Watch, Waterkeeper Alliance, MountainTrue, and the Sierra Club seeking a ruling that the law requires polluters, like Duke Energy, to take immediate action to stop coal ash pollution. All of this played out while Duke Energy was negotiating its plea deal with federal prosecutors for its environmental crimes and, we now know from recent test results, while pollutants common in coal ash, including the carcinogen hexavalent chromium, were contaminating families’ drinking wells next to Duke Energy’s leaking, unlined coal ash pits.”

For more background on the case, you can read this AP coverage of recent court proceedings leading up to today’s decision.