Newly released e-mails show that when Duke Energy received notice that several citizens groups (including Waterkeeper Alliance and several North Carolina Waterkeeper organizations) were planning to sue it for Clean Water Act violations at its coal ash “storage” ponds, it started active negotiations with the North Carolina Departmnent of Environmental and Natural Resources.  These negotiations were aimed to thwart citizen enforcement and avoid taking remedial measures. Basically, as too often occurs when citizens discover ongoing violations that the environmental agencies would prefer to leave unenforced, the violator and the state environmental agency conspire to have the state commence a sham enforcement action in state court on the 59th day after notice. The State agency and the violator then propose a settlement of the case for nominal fines (often on the same day as the suit is filed) and the violator asserts that the collusive State enforcement action constitutes “diligent prosecution” that precludes citizen enforcement under Clean Water Act section 505.

These collaborative “diligent” prosecutions have a long and sordid history – in one of the more blatant cases, from South Carolina, the defendant’s lawyers actually filed the State enforcement action and paid the filing fee on behalf of the State. Friends of the Earth v. Laidlaw Environmental Services, 956 F. Supp. 588 (DSC 1997). I had thought there was an ethical rule against filing a lawsuit against your own client, but apparently in addition to the exception for a suit to collect your own fee, there is an exception for sham lawsuits in which the client is an eager defendant.

In the Duke Energy cases, not only did the State DENR and Duke Energy’s lawyers collaborate on the State enforcement actions, they also developed strategies to try and stop the citizen groups from intervening and being heard in the State court enforcement action. EPA Regulations provide that in order for a State to administer a delegated National Pollutant Discharge Elimination System permitting program, it must commit to “Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation.”  This condition of federal delegation did not phase the NC DENR.

The State Court ultimately thwarted DENR’s and Duke’s efforts, allowed the citizen groups to intervene, and denied entry of the proposed $90,000 settlement.   The case has become a major embarrassment for the State, as the exact environmental hazard the citizens groups were seeking to remedy – environmentally unsound long term disposal of coal ash wastes from power plants – has become the latest environmental disaster for the southeast, with a spill of tens of thousands of tons of coal ash slurry into the Dan River. The spill has prompted a federal criminal investigation into the relationship between the NC DENR and Duke Energy.

It is one thing when regulators fail to enforce environmental laws based on agency enforcement priorities or lack of resources. It is quite another when the same agencies expend their resources actively to thwart effective citizen enforcement. The environmental “protection” agencies all too often see their role instead as industry protection agencies – protecting industry from overeager citizen enforcement. This is not just a problem in the Carolinas – years ago, during the Pataki Administration, we learned that as soon as the New York State Department of Environmental Conservation saw that the Pace Environmental Litigation Clinic had filed public information requests for discharge monitoring reports from a series of municipal sewer treatment plants, an enforcement official at DEC circulated a memo recommending that DEC commence and immediately settle administrative enforcement actions against the plants in question as a way to prevent citizen enforcement.

One can only hope that the national embarrassment of environmental anti-enforcement in North Carolina will shame some environmental regulators to adopt a role of environmental defenses rather than industry defenders.