The great coal ash blunder

The great coal ash blunder

- in Weekly Briefing


Big money, ideology and egos conspire to leave one of North Carolina’s greatest environmental threats unaddressed

The seemingly endless 2014 “short session” of the North Carolina General Assembly is not yet over as of this morning. More than six weeks after the start of the new fiscal year – i.e. the date that lawmakers traditionally target for wrapping up the second year of each General Assembly – things are still limping along toward an uncertain and unsatisfying conclusion. Despite huge partisan and ideological majorities and a compliant governor of the same political party, legislative leaders have been unable to reach agreement on numerous key issues that they themselves had identified as top priorities just a few months ago.

The coal ash stalemate

At the top of just about any “unfinished business” list has to be the issue of North Carolina’s downright frightening coal ash problem. Six and half months ago, North Carolinians were awakened to what had been a long-simmering (and long-neglected) environmental crisis when the bottom literally fell out of a giant Duke Energy coal ash pit next to the Dan River in Rockingham County. Suddenly, millions of people who had never even heard of coal ash became painfully aware that millions of tons of the toxic sludge are actually stored in leaking, temporary pits and “ponds” – many of them perched precariously adjacent to the drinking water supplies of large population centers.

In the weeks that followed, political leaders and Duke Energy (the source and owner of almost all the ash) assured the citizenry that the matter would be addressed forthwith. Despite a good deal of confusion and a number of mixed messages – especially from the McCrory administration – North Carolinians were told that a clean-up plan was in the works and that new laws to make it a reality were in the offing.

Unfortunately, that was then and this is now. Today, the state appears to be little closer to passing meaningful new laws – much less the kind of comprehensive plan that is truly necessary – than it was several months ago. As Gary Robertson of the Associated Press reported this past weekend in Raleigh’s News & Observer:

“The legislature’s inability to finalize a plan to clean up and close Duke Energy’s 33 coal ash pits was a setback for Republicans, who called passage a top priority after the February spill along the Dan River. The House and Senate passed competing versions of a bill to shut down all of the ponds by 2029, but they couldn’t agree on the final details. Now they’ll try again in 2015.”

In other words, despite widespread agreement that something simply must be done (and the compelling argument of environmental experts that the only truly safe and lasting solution is to expeditiously close the current pits and ponds – all of which are currently leaking – and move the ash to lined landfills away from water supplies), state leaders have produced the following: Nada. Zip. A big fat goose egg.

Spinning the snafu

Faced with a policy and political fiasco of major proportions, the Governor and legislative leaders have tried hard in recent weeks to put a positive spin on the mess.

Gov. McCrory issued a highly publicized executive order at the beginning of this month in which he directed his Department of Environment and Natural Resources (DENR) to monitor the groundwater near the state’s 33 ponds at 14 separate sites. Meanwhile House Speaker Thom Tillis simply declared victory despite the failure of legislative efforts. Robertson’s Sunday AP story quoted Tillis as saying: “I believe that North Carolina is moving more quickly to remediate coal ash problems than any other state by virtue of the actions that we’ve already taken.”

Both men’s positions have been dutifully echoed by their allies in the conservative advocacy world. The Locke Foundation published a story just last week entitled: “Coal Ash Clean-Up Moving Forward – Anyway.”

Try as they might, however, it’s hard to see how the “don’t worry, all is well” mantra can hold up for long against the inquiries of a skeptical new media, the relentless and damning critiques of environmental experts and advocates and, ultimately, judges sworn to uphold the law.

Listen to Southern Environmental Law Center (SELC) senior attorney Frank Holleman, a national expert on the subject who has been battling Duke and its obstruction of a comprehensive coal ash clean-up for years, explain why the spin is nonsense:

“As it has failed to do all along, DENR still is not acting to require cleanup of Duke’s dangerous coal ash storage in 10 communities throughout North Carolina. It is only asking Duke to do what Duke has already said it will do – prepare plans to clean up the four sites Duke has already said it will clean up. It’s way past time for DENR to clean up coal ash at all of Duke’s 14 leaking coal ash sites across North Carolina. DENR has confirmed that Duke’s coal ash storage is violating the law and polluting across the state, but DENR has not required Duke to stop violating the law. In fact, the State has joined Duke in appealing the Superior Court’s ruling that DENR has all the authority it needs to stop Duke from contaminating North Carolina’s water resources.”

This is from a background statement that SELC issued along with Holleman’s observation:

“The four sites out of 14 polluting Duke Energy coal ash sites that DENR Is cleaning up are the four that Duke Energy volunteered to clean up in its letter to the Governor months ago.

Additional DENR testing does not stop or cleanup the groundwater pollution that DENR swore in court is happening from all 14 of Duke Energy’s unlined coal ash sites across North Carolina.

In fact, the state joined Duke Energy in its court appeal of the state’s authority to require immediate action to stop groundwater pollution at Duke Energy’s 14 leaking, unlined coal ash sites across the state. 

In addition to challenging its own authority to require cleanup of Duke’s groundwater pollution, the state is not enforcing its legal authority–confirmed by Wake County Superior Court–to require cleanup of the known groundwater contamination at all 14 of Duke Energy’s unlined coal ash sites across North Carolina.”

How things ever got this bad

The great question in this whole situation, of course, is how things spiraled so far out of control. As conservative political observer Andy Taylor told Mark Binker of WRAL last week:

“It does seem they ought to be able to get something done, even if it’s not terribly punitive against Duke, declare victory and go home. That’s a competency and leadership argument rather than a question of whether they’re good or bad on the environment.”

Unfortunately, for all involved, the Taylor’s simple political calculus (as well as the efforts of some conservative Republican lawmakers to intervene) have been swamped by several powerful forces that include:

  • The deep-seated antipathy amongst some tea partying lawmakers toward all environmental regulation that interferes with the supposed “divine right” of humans to exploit the earth;

  • A similarly deep-seated antipathy/jealousy/rivalry between Senate leader Phil Berger and the McCrory-Tillis duo; and

  • Perhaps most importantly, the almost irresistible political power of a giant corporation that has run the state for decades, employed its governor and funded his retirement savings for 28 years and that has no intention of willingly surrendering its powerful grip.

Simply put, North Carolina’s General Assembly is, at least on this critical issue, akin to a mini-U.S. Congress – utterly gridlocked and hopelessly incapable of finding a way out. What makes the logjam so unique in this case, however, is that, unlike the politically and ideologically–divided Congress, North Carolina’s gridlock is taking place on just one side of the political and ideological spectrum. It will be fascinating in the coming months to see what political fallout, if any, envelops the actors in this drama and whether whoever wins in November can muster the political courage to put Duke in its place.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
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