Breaking: Federal Court Allows Coal Ash Litigation to Continue Against Duke Energy
Conservation groups represented by the Southern Environmental Law Center won a major victory Monday night when a federal court ruled that they may go forward with challenges to coal ash pollution contaminating an important public fishery near Wilmington, NC and drinking water supplies for a nearby community. The court rejected numerous arguments by Duke Energy seeking to dismiss the lawsuit brought by Cape Fear River Watch, Sierra Club and Waterkeeper Alliance.
“This ruling is a major step towards protecting people who depend on nearby drinking wells for clean water and on fish from Sutton Lake for their next meal,” said Frank Holleman, the senior attorney at the Southern Environmental Law Center who represented the groups in court. “The court said Sutton Lake belongs to North Carolinians and rejected Duke Energy’s attempt to avoid its responsibility for polluting groundwater and drinking water supplies and convert Sutton Lake into its wastewater dump.”
The state drew national press when it stepped in at the last minute to try to block the citizens groups’ Clean Water Act lawsuit by filing an enforcement action in state court. But the federal court rejected Duke’s argument in this case that the groups’ lawsuit was preempted, finding not only that the state is prosecuting different claims than the conservation groups but also that it would be “remiss” to bar the groups from proceeding given that “there have been allegations of possible improper influence” between Duke and the North Carolina Department of Environment and Natural Resources (DENR). The relationship between Duke Energy and DENR is under nationwide scrutiny and a federal criminal grand jury investigation in the wake of state efforts to block citizen enforcement of the Clean Water Act and the subsequent Dan River coal ash spill.
“Sutton Lake sits on the banks of the Cape Fear River and is an important part of our local economy, so DENR cannot give Duke Energy a blank check to treat this important public resource as a private wastewater treatment facility,” said Kemp Burdette, the Cape Fear Riverkeeper. “It’s long past time for Duke to remove the coal ash and start cleaning up the lake.”
DENR issued Duke a permit that purported to authorize the utility to dump untreated coal ash wastewater directly into Sutton Lake, but the Court held that Sutton Lake is a public waterway, not a private wastewater treatment facility. A study by a prominent biologist concluded that Duke's coal ash pollution was deforming and killing hundreds of thousands of fish in Sutton Lake each year.
“North Carolinians have the right to clean, safe drinking water, but Duke Energy’s toxic coal ash legacy is threatening that right, polluting Sutton Lake along with rivers and lakes across the state,” said Kelly Martin, senior campaign representative with the Sierra Club’s Beyond Coal campaign. “Duke Energy needs to clean up its coal ash pollution now and today’s court ruling moves us one step closer to the protections our communities and environment need.”
Duke’s groundwater pollution at Sutton is threatening the drinking water supply wells for the nearby Flemington community. Last year, after the conservation groups’ efforts brought public attention to the threat, Duke agreed to provide a new water supply to the community, but insisted on placing 17 square miles around Wilmington off limits for drinking water supplies in order to continue its coal ash pollution.
“Duke has got a pollution problem on its hands at Sutton that is indicative of similar contamination issues Duke has caused all around the state” said Donna Lisenby of Waterkeeper Alliance. “With longstanding, illegal pollution of the waters where we fish and drink, why wouldn’t Duke want to follow the South Carolina utilities into the twenty-first century and start cleaning up these problems by recycling and properly storing its coal ash?”
The federal court’s ruling allows the conservation groups to move forward with discovery of Duke’s documents and to question its executives under oath.
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EcoWatch Daily Newsletter
By Naomi Larsson
For centuries, the delicate silver dove has been a symbol of love and fidelity.
Biodiversity and Habitat Loss<p>Their near extinction is a symbol of the <a href="https://www.dw.com/en/global-biodiversity-outlook-targets-extinction-summit-new-york-pledge/a-54932895" target="_blank">biodiversity crisis</a> in the UK, largely driven by habitat destruction. Britain is now one of the countries with the most <a href="https://www.wwf.org.uk/future-of-UK-nature#:~:text=The%20UK%20is%20one%20of,than%20half%20are%20in%20decline" target="_blank">depleted nature</a> in the world according to the World Wildlife Fund. Half its plant and animal species are in decline and more than <a href="https://www.rspb.org.uk/about-the-rspb/about-us/media-centre/press-releases/let-nature-sing-wales/#:~:text=a%20natural%20tragedy.-,Over%2040%20million%20birds%20have%20vanished%20from%20UK%20skies%20in,unaware%20of%20the%20impending%20danger" target="_blank">40 million birds</a> have vanished in just half a century.</p><p>"[Turtle doves] are the canary in the [coal] mine because there are all these other species before it and after it," said Tree. "It's an umbrella for all the other species that are heading that way."</p><p>Turtle doves migrate south through Europe to sub-Saharan Africa between July and September, ending up in dry woodland and farmland areas of countries like Mali and Senegal for winter. </p><p>Droughts in West Africa and the Sahel region are believed to have contributed to the fall in turtle dove species recorded in northern Europe, with low rainfall reducing supplies of the seeds and insects the birds rely on for energy for the long journey home.</p>
Conservation and Farming<p><a href="https://www.operationturtledove.org/" target="_blank" rel="noopener noreferrer">Operation Turtle Dove,</a> a partnership project of charities including the Essex Wildlife trust, works with landowners and farmers to actively build turtle dove habitat.</p><p>Outten works with <a href="https://www.ebws.org.uk/birdsites/blue-house-farm-ewt-north-fambridge" target="_blank">Blue House Farm</a>, a 660-acre nature reserve in the UK county of Essex, where they have replicated weedy fallow plots. </p><p>"We work on it every year to make sure it's in the condition it needs to be with plants such as clovers and black medic," Outten said. "These plants are native to the landscape and produce the seed the birds feed on." </p><p>The birds eat a wide range of seeds from various plants that would have been abundant 50 or 100 years ago, added Guy Anderson, program manager for species recovery with The Royal Society for the Protection of Birds (RSPB). </p><p>"But it's simply true that with the gradual process of <a href="https://www.dw.com/en/farming-without-pesticides-how-can-we-make-agriculture-greener/a-52216796" target="_blank" rel="noopener noreferrer">intensifying our agricultural production</a>, the availability of those seeds has dropped and dropped," said Anderson.</p><p>Part of the project includes supplementary feeding — providing sources of food in the form of seed or grain. Under the Countryside Stewardship Scheme in England, farmers can receive financial support to create a turtle dove habitat. </p><p>Though they haven't recorded an increase in doves across the sites in the four years of working on the project, Outten said they are seeing improvements in how landowners and farmers manage habitat for the birds. </p>
A Turtle Dove Haven<p>The 3,500-acre Knepp Estate in West Sussex is another project taking a different approach and one of the few places where turtle dove numbers are increasing.</p><p>Isabella Tree and her husband Charlie Burrell converted their intensively farmed land into a rewilding project almost 20 years ago. They have let the land return to nature.</p><p>Just one year after they'd finished <a href="https://www.dw.com/en/uks-most-talented-architects-are-not-human/a-35952128" target="_blank">rewilding</a> the southern part of their property, they heard turtle doves for the first time. It's now a breeding hotspot for the birds with an estimated 19 pairs. Knepp is also home to <a href="https://www.rewildingbritain.org.uk/rewilding/rewilding-projects/knepp-estate" target="_blank" rel="noopener noreferrer">2% of the UK's population</a> of nightingales. </p><p>Tree is critical of supplementary feeding schemes that, in her view, are short term. She questions the chances of turtle doves getting to feed on scattered seeds before other mammals eat them first.</p>
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By Jessica Corbett
Green groups applauded Sen. Jeff Merkley on Wednesday for introducing a pioneering pair of bills that aim to "protect the long-term health and well-being of the American people and their economy from the catastrophic effects of climate chaos" by preventing banks and international financial institutions from financing fossil fuels.