Environment

Duke Energy, Ken Rudo’s leaked deposition and the rights of the press

The public wasn’t supposed to know about the sordid details of the coal ash contamination. Duke Energy had ensured their secrecy through a legal maneuver to seal deposition, keeping their contents out of public view. But now that the secrets, at least some of them, have been aired, first by the Associated Press, Duke wants to know the source of the leak.

WFAE is reporting that Duke Energy has asked a federal judge to hold a hearing to find out who leaked Rudo’s deposition, part of an ongoing lawsuit filed by the Southern Environmental Law Center, to the AP.

Duke’s request has chilled those concerned about the freedom of the press, including obviously, reporters. But the move has greater constitutional ramifications for the Fourth Estate. North Carolina has a shield law that grants journalists a broad but qualified privilege against disclosure of newsgathering information, according to the Reporters Committee for Freedom of the Press. That includes the receipt of any “confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist.”

However, this right is not constitutionally protected by the state. Nor is there a federal shield law that allows journalists to refuse to disclose their sources.

When Associated Press published details from state toxicologist Ken Rudo’s deposition, its revelations changed the entire trajectory of the discussion about the coal ash spill. The Department of Environmental Quality, over objections of state public health officials, was responsible for reversing the don’t drink order to residents whose wells had been contaminated by coal ash chemicals. And Gov. Pat McCrory was included on a phone call intended to sway Rudo to that way of thinking.

It put the Department of Environmental Quality on the ropes. It prompted the resignation, in protest, of Megan Davies, a top epidemiologist in the health and human services department. And it raised further suspicions that the McCrory administration had minimized the public health risk from coal ash, to benefit the governor’s former employer, Duke Energy.

Duke is alleging that the SELC leaked the documents, which the organization denies, according to WFAE. There has been no announcement of a hearing or if journalists will be required to testify or their notes subject to a subpoena.

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