Duke it Out

Arsenic and old waste are killing old Dan River, and injuring the North Carolinians who depend on it for their water supply.  Law suits by environmental groups to prevent disasters, like the February 2nd spill of coal ash into the Dan River from a Duke Energy coal ash dump, were blocked by John Skvarla, head of the North Carolina Department of Environment and Natural Resources (DENR).

When a state fails to act, citizens may file suit on behalf of the public.  Environmental groups had given notice of intent to bring legal action to require Duke to clean up coal ash basins and pay applicable fines.  In March of 2013, DENR brought suit against Duke, precluding any action by environmental groups.  Ordinarily, a state stepping up to the bar is a good thing, but not when the defendant is buying the drinks.  North Carolina governor Pat McCrory spent 28 years at Duke and received 1.1 million in campaign contributions from the energy giant.

DENR entered into a proposed settlement with Duke.  Duke, a 50 billion dollar company, would pay $99,111 in fines, less than one week of compensation for the Duke CEO.  More importantly,  Duke was not required to take any corrective action.

John Skvarla is lying when he denies this was a sweet heart deal.  As a lawyer, I can state definitively that none of the usual reasons for a low ball settlement apply.  A typical reason for retreat is that interrogatories, depositions and other legal discovery highlight weaknesses in a case.  This settled before any such discovery.  A related reason is that mounting legal costs exceed the possible benefits of proceeding.  But in this instance North Carolina would have bourn no legal costs if it allowed private environmental litigation to continue.

The rationale offered by Skvarla is nonsensical.  He contends that DENR settled to avoid years of litigation that would have delayed dealing with coal ash.  This fails on two grounds.  The settlement did not require corrective action. More importantly, litigation does not prevent corrective action.  For instance, if someone slips on a crack in the sidewalk and sues the city, municipal repairs may not be introduced into evidence.  Public policy precludes corrective action being used against a defendant  in litigation.

Continued litigation would expedite, rather than delay, coal ash solutions.  John Skvarla is a liar.  Recently issued Federal subpoenas may reveal whether he and governor McCory are dirty liars.