For decades, Duke Energy has generated most of the electricity in North Carolina, giving the company enormous power both literally and politically. In both cases, it created a lot of pollution. In the past decade, Duke has used its influence to warp the state’s executive, legislative and judicial system to their own ends. For close to a decade longer than it should have been allowed, Duke has polluted rivers and groundwater with unlined coal ash ponds. The state and DEQ enabled them.
After a massive coal ash spill in Kingston, TN in 2009, the EPA started inspecting coal ash ponds around the country. They determined that several of Duke’s ponds in North Carolina were a “significant hazard” and a potential huge environmental disaster (Smith, 2014). In North Carolina, coal ash ponds are under the purview of the Department of National Resources (DENR). Many states have separate departments for natural resources and the environment. The dual mission of both helping companies monetize nature and keep it clean creates a conflict of interest. In 2010, NC’s DENR inspected Duke’s 14 coal ash ponds and, in contrast to the EPA, found no issues (Porter, 2014).
Duke built a coal ash pond at the Dan River Power Station, in Eden, North Carolina, in the 1950s. They installed an 800 foot pipe under the pond to route fresh rainwater to the Dan River (Wireback, 2015). Inspectors discovered the pipe leaking coal ash in 1979 and first repaired the pipe in 1981. Duke then paid for inspections of the pipe every five years. Probably feeling bolstered by DENR’s report and not wanting to find conflicting information, Duke refused to pay for an inspection in 2011 (Henderson, 2015).
In 2012, the state elected 29 year veteran Duke employee Pat McCory (R) as NC’s governor (Henderson, 2016). McCory appointed businessman John Skvarla (R) to head DENR. Skvarla believed that DENR should focus on developing natural resources and reduced the power of state scientists to make water quality decisions without his approval (Woodman, 2014). As a result of Skvarla’s appointment, a lot of long term DERN employees either resigned or were removed (Wheeler, 2014).
In 2013, environmental groups gathered evidence of toxins in several rivers downstream of Duke’s coal ash ponds. They gave notice to Duke that they were going to sue the company in a civil action under the Clean Water Act. DENR responded to the lawsuit by claiming state supremacy; negating the pending civil lawsuit and moving the case to state court. DENR then moved to exclude the environmental groups from their lawsuit (Porter, 2014).
Since released emails sent from state lawyers to Duke indicate that DENR coordinated their lawsuit with the company (Light, 2014). Over objections, a NC judge allowed environmental groups to join DENR’s Clean Water Act lawsuit against Duke’s coal ash ponds. DENR entered into a consent decree with Duke to allow them to pay a modest, $100 thousand, fine that did not require Duke to stop leaching of harmful toxins from their coal ash ponds (Porter, 2014). As part of their lawsuit, DENR gathered water samples of their own that showed toxic levels of coal ash pollutants in rivers across the state; including in the Dan River. DENR never asked Duke to fix the issues (Smith, 2014).
Just a few months after the consent decree, in early 2014, the pipe that ran under the Dan River Power Station coal ash pond failed and the Dan River filled with over 30 million tons of coal ash and coal ash water. Duke CEO Lynn Good stated that customers wouldn’t pay for the coal ash cleanup (Henderson, 2014). A month after the disaster, DENR announced it would issue permits to Duke to continue to allow seeping of coal ash water at its coal ash ponds throughout the state. A judge disagreed and prevented DENR from issuing the permits. Environmental groups demanded that the EPA takeover cleanup efforts of the Dan River because Duke and DENR couldn’t be trusted (Smith, 2014).
In response to the Dan River spill and using the vehicle of the existing Clean Water Act lawsuit, a NC judge ordered Duke to cleanup all 14 of its coal ash ponds (Leslie, 2014). The Republican controlled NC General Assembly responded by passing a bill allowing Duke to keep its coal ash ponds in place. DENR then let Duke halt cleanup of the Dan River, calling the remaining coal ash, “naturally sequestered” even as riverkeepers continued to find coal ash in the river (Victory, n.d.). Suspicious of collusion, The US Department of Justice launched an investigation of 19 employees of DENR to determine if they received gifts or cash from Duke (Smith, 2014).
News headlines from the time question the relationship between Duke, DENR and the state government:
“Federal Prosecutors Launch Criminal Investigation of NC Environmental Regulators,” EHS Today, “Former NC DENR workers talk about coal ash, water quality and the department’s new direction,” News & Observer, “How DENR ran interference for Duke Energy and let the Dan River spill happen,” Indy Week, “Meet the environmental ‘regulator’ who hates science: John Skvarla's coal ash mess,” Salon, “McCrory’s Duke Energy ties, and coal ash response, become a campaign issue,” Charlotte Observer, “Were North Carolina Regulators Helping Duke Energy Avoid Big Fines?,” Billmoyers.
In 2015, the NC General Assembly passed a law reforming environmental regulations in the state. The law created a framework to prevent public disclosure of environmental inspection reports when requested by polluters. It also created exemptions to civil penalties for issues found during environmental inspections. The EPA, which has jurisdiction over the Clean Water Act, didn’t allow the regulations to take effect. As part of the law, DENR changed their name to the Department of Environmental Quality (DEQ). Despite the name change, very little differed in their scope (Ware, 2015). Later in the year, DEQ granted Duke a permit allowing the company to ship coal ash from the Dan River to unlined clay mines in eastern North Carolina (Song, 2019).
DEQ settled with Duke over the Dan River spill with a record $25 million fine (Schlanger, 2016). Duke then plead guilty to Clean Water Act violations for leaching coal ash ponds in Eden, Moncure, Asheville, Goldsboro and Mt. Holly. For the violations, the EPA fined Duke $102 million (Duke, 2015). Between 2000 and 2016, Duke accumulated 1.6 billion in government fines for 26 environmental violations (Violation, n.d.).
In early 2016, Duke claimed that it would not clean up six of its coal ash ponds because they’re low risk (Victory, n.d.). In response, DEQ reduced their fine from $25 million to $6.8 million. It later reduced the fine to just $6 million (Song, 2016). Frustrated by the lack of action, gubernatorial candidate Roy Cooper (D) accused governor Pat McCory of being too lenient on his former employer, Duke Energy. Cooper would go on to win the 2016 election for governor (Henderson, 2016).
In 2018, Duke broke a promise and increased energy rates on NC consumers to cover $232 million of coal ash cleanup costs (Burns, 2018). Duke requested an additional rate increase of $472 million which the state denied (NC, 2018). The new administration in Raleigh took a tougher stance against Duke. In 2018, the state fined Duke $156 thousand for failure to clean up its coal ash ponds (Dalesio, 2018). NC regulators then ordered Duke to refund NC consumers $60 million in deferred taxes. The NC Utilities commission stepped in where DEQ wouldn’t and fined Duke $70 million for coal ash mishandling (N, 2018).
Amidst all the fines, an environmental group, NC WARN, exposed how Duke dropped more than $80 million a year on influence spending, “targeted philanthropy,” via the Duke Energy Foundation (Fain, 2018). Duke respond by threatening NC WARN with a libel lawsuit if they didn’t remove Duke’s lobbying information from their website. NC WARN refused to remove the data and explained that Duke funded its lobbying from fees collected on their customer’s power bills. NC Warn filed a petition with the NC Utilities Commission demanding a stop to the practice (Groups, 2018).
DEQ continued to side with Duke much later then would be otherwise expected. In 2018, DEQ agreed with Duke that its remaining coal ash ponds might be low risk enough to not need excavating (Boraks, 2018). Then disaster hit the state as Hurricane Florence caused a coal ash spill at a Duke plant outside of Wilmington, NC (Niquetteand, 2018). Perhaps influenced by the Wilmington spill, DEQ finally decided to break things off with Duke. In April 2019, DEQ ordered Duke to clean up all their coal ash ponds in the state. Duke didn’t take the breakup well and sued DEQ. Duke argued that the company should be able to cap their coal ash ponds in situ and that the company wasn’t granted enough due process (Downey, 2019).
In response to Duke’s lawsuit, in July, the Feds, NC and Virginia sued Duke for damage caused by the 2014 Dan River spill (Morehouse, 2019). In the fall, a NC Judge rejected Duke’s procedural arguments against DEQ’s order to clean up all the coal ash ponds. A different NC judge ruled that DEQ wrongly granted a permit to Duke in 2015 allowing the company to ship coal ash to clay mines in eastern NC (Song, 2019). Sensing the change in the judicial and executive climate, Duke settled the Clean Water Act lawsuit brought by DEQ and environmental groups in 2013 and agreed to move most of its coal ash to above ground landfills. Pundits hailed the agreement as a win for the environment. DEQ blew Duke a final kiss and structured the agreement to allow two coal ash ponds to only be partially excavated, saving the company $1.5 billion (Baker, 2020).
The story of Duke and its coal ash ponds is an actual life conspiracy. DEQ neglected its duty to the people of North Carolina and fought to protect its powerful friends, the polluters. DEQ can’t be sued and won’t be held responsible for its part in the Dan River disaster. Duke put the lives of countless people at risk long after it knew it should clean up its pollution. To achieve its goals, the company manipulated all levels of government in North Carolina and threatened legal action against its critics. If the company had simply accepted its responsibility to the state and its customers, the coal ash pollution could have been cleaned up years ago.
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