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Industry-Friendly Regulators Ask to be Stripped of Regulatory Power

After coal ash spill, state regulators appeal ruling demanding Duke Energy clean up

The Duke Energy coal ash pond in proximity to the Dan River, where in February it spilled millions of gallons of coal sludge. (Photo: Waterkeeper Alliance/ Creative Commons/ Flickr)

The Duke Energy coal ash pond in proximity to the Dan River, where in February it spilled millions of gallons of coal sludge. (Photo: Waterkeeper Alliance/ Creative Commons/ Flickr)

In an 'unprecedented' move, North Carolina officials—whose responsibility it is to enforce environmental protections—are causing outrage in the state for arguing that a court ruling against the coal industry is too harsh.

State-appointed members of the Environmental Management Commission (EMC) announced Monday that they are appealing a ruling that ordered Duke Energy take "immediate action" to clean up its 33 coal ash ponds. The ruling—handed down following a major coal ash spill on February 4—gave state regulators greater ability to force Duke to proactively reduce the risk of polluting other rivers.

However, the EMC says it does not want this authority. Instead of acting as a watchdog to clamp down on Duke, in fact, the members actively argued that Duke should be given more time to make improvements.

“If the state is serious about enforcing the law, why in the world would the state ask the (N.C.) Court of Appeals to limit that authority?” D.J. Gerken, a lawyer with the Southern Environmental Law Center, told the Charlotte Observer. Following the announcement, environmentalists were torn between shock and the sad realization that this is much of the same.

"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.”

Duke Energy has a long history of familial relations with the state government, beginning with Governor Pat McCrory's 28 years of employment at the utility. 


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As previously noted by Charlotte Observer energy reporter Bruce Henderson, last summer McCrory and the Republican-led legislature passed a budget that effectively fired all members of the EMC. On his personal blog, Henderson wrote:

The move gives Gov. Pat McCrory and the Republican-led legislature, which has targeted environmental regulation as a drag on business, a clean slate to remake the powerful Environmental Management Commission. The commission is charged with adopting rules protecting air and water resources.

According to activists speaking with Al Jazeera, the move "gave the board almost no independent decision-making power."

Following a previous coal ash spill, the state agency charged with carrying out environmental regulations, the Department of Environment and Natural Resources (DENR), negotiated a settlement that many called a "sweetheart deal" with the utility. Under scrutiny after the Dan River spill, the U.S. Attorney's Office in Raleigh recently initiated a federal probe into ties between Duke and the DENR.

According to Gerken, the news of the appeal defies statements made by the state that they will prioritize cleaning up groundwater contamination. "I was very surprised," he said. "I guess the saga continues.”


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